Applying and supervising the ECHR
Future developments
of the European Court of Human Rights
in the light of the Wise Persons’ Report
100
95
75
Colloquy organised by the San Marino chairmanship
of the Committee of Ministers of the Council of Europe
25
5
San Marino, 22-23 March 2007
COUNCIL
OF EUROPE
CONSEIL
DE L’EUROPE
0
H/Inf (2007) 3
Future developments
of the European Court
of Human Rights
in the light
of the Wise Persons’ Report
Colloquy organised by the San Marino chairmanship
of the Committee of Ministers of the Council of Europe
San Marino, 22-23 March 2007
Proceedings
Directorate General of Human Rights
Council of Europe
April 2007
Édition française : Développements futurs de la Cour européenne des Droits de
l’Homme à la lumière du Rapport des Sages. Colloque organisé par la Présidence
saint-marinaise du Comité des Ministres du Conseil de l’Europe, Saint-Marin, 2223 mars 2007
Directorate General of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
http://www.coe.int/
© Council of Europe, 2007
Printed at the Council of Europe
Contents
Introduction
Welcome address
Mr Fiorenzo Stolfi, Minister of Foreign and Political Affairs of the
Republic of San Marino, Chairperson of the Committee of Ministers of
the Council of Europe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Some starting points for our reflection on the future of the Court
Mr Terry Davis, Secretary General of the Council of Europe. . . . . . . . . . 9
The 2004 reform and its implementation
Ms Ingrid Siess-Scherz, former Chairperson of the Committee of
Experts for the improvement of Procedures for the Protection of Human
Rights (DH-PR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Presentation of the Wise Persons’ Report
Mr Gil Carlos Rodríguez Iglesias, Chair of the Group of Wise Persons
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Comments on the Wise Persons’ Report
from the perspective of the European Court of Human Rights
Mr Jean-Paul Costa, President of the European Court of Human Rights
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Comments on the Wise Persons’ Report
from the perspective of the Parliamentary Assembly of the Council
of Europe
Ms Marie-Louise Bemelmans-Videc, Member of the Parliamentary
Assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
The new judicial filtering mechanism: introductory comments
Mr Martin Eaton, former Chairperson of the Steering Committee for
Human Rights (CDDH). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Relations between the Court and States Parties to the Convention
Ms Wilhelmina Thomassen, Judge at the Supreme Court of the
Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Alternative or complementary means of resolving disputes
and other issues broached in the Wise Persons’ Report
Mr Thomas Hammarberg, Council of Europe Commissioner for Human
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Ensuring the long-term effectiveness of the European Court of
Human Rights
NGO comments on the Group of Wise Persons’ Report, Amnesty
International; Justice; European Human Rights Advocacy Centre
(EHRAC); Liberty; Human Rights Watch; Redress; Interights; Aire
Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Synthesis of the Colloquy
Ms Maud de Boer-Buquicchio, Deputy Secretary General of the Council
of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Closing address
Mr Guido Bellatti Ceccoli, Ambassador, Chairman of the Ministers’
Deputies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Programme
of the Colloquy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Participants
San Marino, 22-23 March 2007/Saint-Marin, 22-23 mars 2007 . . . . . . 98
4
Future developments of the European Court of Human Rights
Introduction
T
he San Marino Chairmanship of the Council of Europe’s Committee of Ministers decided to organise this Colloquy so as to enable a first broad exchange of
views at a high technical level on the various measures recommended in the
Report by a Group of Wise Persons set up by the Committee of Ministers of the
Council of Europe following the 3rd Summit (Warsaw, May 2005).
The Report deals with the long-term effectiveness of the European Convention on Human Rights’ control mechanism, over and above Protocol No. 14 to
the Convention and the decisions taken by the Ministers in 2004 to improve the
implementation of the Convention at national level.
It is expected that the San Marino Colloquy will result in useful insights and
suggestions for the preparatory work of the 117th Ministerial Session, in May
2007, at which the Committee of Ministers will take its first decisions on the
follow-up to the Report within the relevant bodies of the Council of Europe. Ž
San Marino Colloquy, 22-23 March 2007
5
Welcome address
Mr Fiorenzo Stolfi
Minister of Foreign and Political Affairs of the Republic of San
Marino, Chairperson of the Committee of Ministers of the Council
of Europe
M
r Secretary General of the Council of Europe, Mr President of the Court,
Madam Representative of the President of the Parliamentary Assembly,
Mr Commissioner for Human Rights, Madam Deputy Secretary General,
Mr President of the Group of Wise Persons, Mr Secretary General of the Parliamentary Assembly, Rapporteurs, Excellencies, ladies and gentlemen participating in the Colloquy,
I am really pleased to open the works of this Colloquy on the future developments of the European Court of Human Rights in the light of the Wise Persons’
Report, which the San Marino Chairmanship of the Committee of Ministers of
the Council of Europe has strongly desired and which is expected to give new
impetus to the reform process under way.
The mechanism set up with extraordinary farsightedness by the European
Convention on Human Rights and developed by its following Protocols is undoubtedly the most important achievement of the Council of Europe. Unquestionably, the “Strasbourg system”, especially the European Court of Human
Rights, has been successful over the years, in that it has been able to ensure
respect for rules protecting human rights and fundamental freedoms of individuals in all member states.
European citizens have learnt that, once all remedies available domestically
have been exhausted, they can directly apply to Strasbourg, whenever they feel
that their rights under the Convention have been violated. States have learnt to
enforce the Court’s decisions, by adopting the measures requested for each case,
but also, more broadly speaking, by amending, whenever necessary, their domestic legislation.
6
Future developments of the European Court of Human Rights
Mr Fiorenzo Stolfi
No country in the world can deem itself immune against human rights violations, no domestic legal system can be deemed “perfect” and, even where a legal
system could be considered close to “being perfect”, this nonetheless issues,
shortcomings or more simply mistakes in its application could not be ruled out.
Each state, like San Marino, has therefore greatly benefited from control over
its legislation and case-law by the European Court of Human Rights in terms of
strengthening and developing the rule of law.
The “Strasbourg system”, which European governments can and must be
proud of in front of their own nationals and the rest of the world, has to cope,
today, with an extremely demanding challenge.
Despite the creation of the permanent Single Court, with the entry into force
of Protocol No. 11 on 1 November 1998, the workload of Judges has become too
burdensome and, most of all, proceedings for applicants have become too
lengthy. The time lag between an application and the Court’s decision has continued to increase over the years. This jeopardises the proper functioning of the
whole mechanism and, consequently, negatively affects the right of individual
application.
The challenge, which must be faced successfully, is to speed up and simplify
the system, without its high quality level being affected.
Governments are already committed to meeting the recommendations of the
Committee of Ministers to member states, the implementation of which represents an important step towards improving the functioning of the control mechanism of the Convention. I am referring notably to Recommendation (2000) 2 on
the re-examination or reopening of certain cases at domestic level following
judgments of the European Court of Human Rights, Recommendation (2004) 5
on the verification of the compatibility of draft laws, existing laws and administrative practice with standards laid down in the European Convention on
Human Rights, Recommendation (2004) 6 on the improvement of domestic
remedies, Recommendation (2002) 13 on the publication and dissemination in
the member states of the text of the European Convention on Human Rights and
the case-law of the European Court of Human Rights.
Protocol No. 14, which will hopefully enter into force as soon as possible, will
be a key instrument to face the challenge ahead of us. Similarly, the follow-up
that the Council of Europe and the member states will give to the Wise Persons’
Report will be crucial.
I take this opportunity to reiterate to the Wise Persons, in particular President
Rodríguez-Iglesias, my most sincere thanks for the excellent work done. What
you have proposed is extremely useful and encourages the Council of Europe to
take measures with a view to ensuring the long-term effectiveness of the control
mechanism of the Convention.
in the light of the Wise Persons’ Report
7
Welcome address
It is indeed for the purpose of adopting, in the very near future, appropriate
and suitable measures to solve the current issues that the San Marino Chairmanship has organised this Colloquy starting today.
We have requested all interested parties, ranging from Governments to
NGOs, from the Secretariat to the Parliamentary Assembly, from the Group of
Wise Persons to the Court, to be represented here at the highest technical level
to examine the various measures contained in the Report and exchange views
and proposals on its follow-up.
At this stage, we have not opted for a political conference, but rather for a
meeting among experts, which should give a technical and legal input to the
reform process.
As Chairman in office of the Committee of Ministers, I am committed to advocating your reflections and conclusions within the various institutions,
notably the Committee of Ministers, which, as you know, during its next session
in May this year, will have to decide on the follow-up to the Report.
I hope – and in this regard I call upon you all – that this Colloquy will be a truly
interactive dialogue among all participants based on the reports to be tabled. In
particular, I deem it most desirable to identify those measures which could be
adopted immediately, without having to amend the Convention, or otherwise
follow time-consuming procedures.
For example, the Wise Persons insist on the need and urgency for the Court
to be relieved of a large number of cases which I would define “minor” – that is
inadmissible or repetitive – the examination of which goes to the detriment of
those cases, where more serious violations of fundamental rights are involved.
What measures do you deem appropriate to immediately solve this issue,
even before the entry into force of Protocol No. 14?
Given the importance for domestic case-law to be in line with the Court’s
case-law in interpreting the Convention, do you consider acceptable and feasible
the Wise Persons’ proposal to allow national courts to ask the Court for advisory,
non-binding opinions on legal issues relating to the interpretation of the Convention and its Protocols?
The San Marino Chairmanship expects that these two working days will
result in technical and practical responses to well-known issues, which we are
called to address.
I warmly thank you for having accepted the invitation to this Colloquy, which
I hope will be interesting and productive. I wish you all a fruitful work and an
agreeable stay in the Republic of San Marino, which has the pleasure and the
honour to host you.
Thank you. Ž
8
Future developments of the European Court of Human Rights
Some starting points
for our reflection
on the future of the Court
Mr Terry Davis
Secretary General of the Council of Europe
T
he European Court of Human Rights is unique in Europe. Indeed, I believe
that it is unique in the world. It is the only international court to which individuals, regardless of nationality or citizenship, can complain about alleged violations of their human rights by a government. This is one of the great
achievements of the 20th century in Europe, and we should bear this in mind
whenever we are discussing anything which would affect the future of the Court.
In my view, it is not an exaggeration to say that this Court has been given its
far-reaching powers because it was created in the aftermath of World War II. I
am not sure that governments would be equally enthusiastic about the creation
of such a court if the decisions had to be taken today. Instead of a concerted effort
to reinforce the existing mechanism of human rights protection, we see the multiplication of bodies and instruments with very little effort to ensure the coherence and the hierarchy which are essential for the rule of law. Instead there is an
increasing risk of creating a Europe in which human rights are protected à la
carte and governments can pick and choose the report or the judgment they
prefer. The mechanisms of human rights protection are like parachutes. Some
people say the more parachutes we have the better it is, and to some extent these
people are right, but what we need to do is establish a clear order – or face the
risk of opening two or more parachutes at the same time with the risk of getting
them entangled with the accompanying risk of disaster. This is clearly a danger
in Europe today.
San Marino Colloquy, 22-23 March 2007
9
Some starting points for our reflection on the future of the Court
To avoid this risk, we must make sure that the European Court of Human
Rights and the Council of Europe as a whole remain the primary source of human
rights standards and their interpretation for the whole of Europe.
Another point I should like to make is that we should stop simply talking
about how to reduce the number of applications to the Court. On the contrary,
our aim should be to make sure that as many people as possible are aware of the
existence and the availability of the Court and the steps which need to be taken
to complain to the Court if they believe a government has failed to protect their
rights. Our task is to protect individual human rights, not to protect the Court
from individual complaints.
Our approach should be constructive and realistic, and we should seek to
identify and take measures which would increase the capacity of the Court to
process applications, reduce the number of outstanding applications and deliver
justice to everyone in Europe. As I see it, justice includes a quick – not hasty, but
quick – response to every application.
Our basic objectives should therefore be to ensure that, in the future, the
Court is in a position to respond, within a reasonable time, to everyone petitioning it and to continue to deliver high-quality judgments. Furthermore, we should
ensure that the Committee of Ministers is in a position to supervise the execution of judgments effectively. If the decisions of the Court are not quickly and
fully executed, similar violations will occur elsewhere and unnecessarily aggravate the backlog of pending applications.
The call for more money is always a tempting option, but budgetary austerity
is not the only reason to seek solutions which go beyond pumping more money
into the Court.
First, additional resources will not solve the problem of the ever increasing
flow of new applications. Second, leaving aside problems of coherence of caselaw which inevitably arise with a huge registry, a continuous increase of resources might even reduce the effectiveness of the system.
Let me explain this last point by recalling the tragic story of the thousand
horses which died frozen in the Ladoga lake in 1942 while trying to escape from
the flames of the bombed forest. The Ladoga syndrome, describing a solution
which, in fact, kills you, is a real danger for the Council of Europe. A headlong
flight into ever-increasing budgets for the Court – at the expense of the rest of
the Council of Europe – would inevitably suffocate all intergovernmental, monitoring and capacity building activities – which must be preserved in order to
save the system of human rights protection as a whole in the long term. These
other activities are essential in preventing violations of human rights as well as
reinforcing the impact of the Court decisions and consequently the effectiveness
of the Convention system.
10
Future developments of the European Court of Human Rights
Mr Terry Davis
Moreover, the experience of recent years shows that sustained annual increases in resources for the Court have failed to produce the desired effect. I
know that some people will say that this was because, in the end, the Court did
not receive as much as it had asked for. Others may add that the increase in the
number of applications has continued to grow faster than the money was coming
in. However, the fact is that the backlog has continued to grow – with 81 000 applications pending at the end of 2005 and 89 900 at the end of 2006. I am not sure
that simply giving more money and more staff is the answer.
What we need are simple short term measures, such as those suggested in the
report by Lord Woolf in December 2005, combined with the rapid entry into
force of Protocol No. 14. This should give us the breathing space we need to see
the long term effect of the recommendations put forward by the Wise Persons’
Report – recommendations which will themselves take years to discuss, adopt
and ratify according to our experience with Protocol No. 14 and our Conventions
dealing with terrorism and trafficking in human beings. All this must be supported by adequate financial and political support to the activities of other parts
of the Council of Europe aimed at preventing future violations of human rights.
I will begin with some short-term measures. These measures are without
prejudice to both the entry into force of Protocol No. 14 and the reflections on
the Wise Persons’ Report. I should like to make four specific suggestions to improve, in the short-term, the effectiveness of the Court.
First, it is important to see the scale of the problem clearly. To this end, we
need better statistics – not more statistics, but better statistics. Put simply, the
Court should stop counting applications which are not applications. A year ago,
Lord Woolf recommended that the Court should redefine what constitutes an
application. It should only deal with properly completed application forms
which contain all the information required for the Court to process the application. This would simplify the task of the Registry, which would no longer register
and treat letters from potential applicants as if they are already real applications.
I am very strongly in favour of this suggestion, and I am frankly disappointed that
the Court has not yet fully implemented it. I realise that this suggestion is
opposed by the NGOs because they “consider that a requirement that applications be lodged on the relevant form may bar effective access to the Court for
some of the most vulnerable individuals”. I can see their point, but I still think that
if one wants to bring a case to a court, it is not unreasonable to ask for the necessary form to be completed. As far as I can discover, this applies to all courts in
all our member states, and I see no reason why the European Court of Human
Rights should be an exception. Of course, I would like vulnerable people to be
helped to apply to the Court of Human Rights, but I do not think that counting
every scrap of paper received by the Court as an application, sending forms
which never come back and then sending reminders to people who cannot cope
in the light of the Wise Persons’ Report
11
Some starting points for our reflection on the future of the Court
with the forms is good enough. It only muddies the water to count such correspondence as an outstanding application. I know that such applications are eventually deleted and removed from the statistics – why count them in the first
place?
Second, the Court should no longer deal with repetitive cases. Cases which
may serve as pilot judgments should be given priority, and all similar cases
should be stayed pending the outcome of the pilot case. Several NGOs support
this approach and go even further by suggesting that the Council of Europe
should carry out comprehensive monitoring of the adequacy and timeliness of
compliance with pilot judgments.
Third, more than 50% of applications come today from Poland, Romania,
Russia, Turkey and Ukraine. Without going as far as proposing the creation of
Satellite Offices of the Registry as suggested by Lord Woolf, I would suggest that
each Information Office of the Council of Europe in these countries should be
equipped with an information desk with a qualified staff member in order to help
applicants to complete the application form. This is not legal advice, but practical assistance helping people to fill their forms correctly.
My fourth point is an idea for which I am indebted to the Deputy Secretary
General who suggests that the Court should make an innovative use of the provision relating to ad hoc judges. Article 27 of the Convention provides that, if a
judge is unable to sit, the state concerned may appoint an ad hoc judge. Normally,
this provision applies to situations where there is the possibility of bias – when
the national judge was involved in the national case or is related to the applicant
– but the term “unable to sit” could be interpreted in a broader manner, for instance, in relation to the excessive workload of the Court. This would enable the
capacity of the Court to be doubled because a state would have its national judge
and an ad hoc judge operational at the same time. This is of course only a suggestion which I leave to your consideration, together with the three previous
ones.
My second set of proposals concerns accompanying measures. I have already
made the point that the Court is not an isolated entity, but a vital and inextricable
part of the Council of Europe. The Court needs other parts of the Council of
Europe as much as other parts of the Council of Europe need the Court.
Our standard-setting, monitoring and capacity-building activities provide a
crucial supporting environment for the work of the Court, which in turn nourishes and enriches these activities through its constantly evolving case-law. A
Court at the heart of a defunct Council of Europe would lose its effectiveness, its
credibility and therefore its legitimacy. It is ludicrous to imagine that it could
operate in an institutional and political vacuum.
We must not lose sight of the fact that the Court’s judgments must be fully executed under the supervision of the Committee of Ministers and must also be in12
Future developments of the European Court of Human Rights
Mr Terry Davis
tegrated, with the help of targeted Council of Europe activities, into national
legal order and practice.
The activities of the other human rights bodies and institutions within the
Council of Europe, such as the European Committee for the Prevention of Torture, the European Commission against Racism and Intolerance, the Framework
Convention for the Protection of National Minorities, the Commissioner for
Human Rights and others, help to prevent both new abuses and repeated violations and are essential in reducing the flow of applications to the Court.
Finally, the protection system established by the Convention would become
rigid without strong intergovernmental co-operation in Europe, capable of foreseeing problems and of submitting specific proposals to the Committee of Ministers for the continued development of human rights and the improvement of
procedures for the protection of these rights. It is through intergovernmental cooperation that the member states manifest their “ownership” of the European
Convention on Human Rights and the European Court of Human Rights.
All this shows that we must be realistic. If the growth of the Court continues
to be funded by transferring resources to the Court from the ordinary budget of
the Council of Europe, this will endanger the other activities of the Organisation
which are essential for the long-term effectiveness of the system as a whole.
The 2004 reform package adopted by the Committee of Ministers centred
around three points: first, enhancing the Court’s case-processing capacity;
second, improving implementation of the obligations arising from the Convention on Human Rights and protection of human rights at national level; and
third, improving the execution of judgments.
The problem with Protocol No. 14 is of course that, three years after its adoption, it still has not entered into force. We all hope that the Russian State Duma
will ratify the Protocol. We need the increased capacity which the Protocol is expected to bring about. Protocol No. 14 was itself a compromise, but it was a compromise agreed by all our member states including the Russian Federation in an
attempt to tackle the problems of the Court by reducing judicial involvement in
respect of plainly inadmissible cases and repetitive cases.
However, the 2004 reform was not limited to Protocol No.14. The Committee
of Ministers also adopted other Recommendations aimed at reducing the future
workload of the Court. These Recommendations encourage member states to
meet their obligations under the Convention. In fact the experts who drafted the
protocol and these Recommendations regarded these instruments as a package
of complementary measures.
Since June 2004, the Steering Committee for Human Rights (CDDH) has
undertaken a major review of the implementation of the recommendations on
national measures such as the improvement of domestic remedies, the verificain the light of the Wise Persons’ Report
13
Some starting points for our reflection on the future of the Court
tion of the compatibility of domestic law with the standards of the Convention
and the re-examination or reopening of some cases at the national level.
All these measures should improve the performance of our member states
and reinforce their ability to protect individuals from human rights violations.
We should not forget that the member states bear a primary responsibility in this
respect, and that really the role of the Court is the role of a safety-net.
Finally, I should like to offer a response to the proposals made in the Report
of the Wise Persons.
Many of these proposals are not new. Many of them were examined during
the negotiations for Protocol No. 14. This does not mean that we should not reexamine them, but it does mean that we should begin by checking whether the
reasons for not including them in Protocol No. 14 are still valid today.
It is interesting to note that several ideas put forward by the Wise Persons
could be put into effect immediately without amending the Convention. For example, there is nothing in the Convention to stop us enhancing the authority of
the law of the Court by widely disseminating its decisions. Similarly, there is
nothing to prevent greater use of pilot judgments by the Court, encouraging mediation at national level and extending the mandate of the Human Rights Commissioner to respond actively to Court decisions.
Of course, some other proposals would require amendments to the Convention or a separate Council of Europe legal instrument.
A new judicial filtering mechanism and the idea of reverting to a two-tier
system have clear potential for efficiency savings provided that the judges sitting
in such a restructured Court would be assisted by the existing registry staff.
However, we must remember that in the preparation of Protocol No.14 the
prevailing opinion was that a separate filtering body would not solve the current
problems, would be politically difficult to accept, would prolong the proceedings
and would make them more complicated.
Personally, I think that we should seriously consider another idea, not contained in the proposals of the Wise Persons. I am referring to making it possible
for the Registry itself to reject obviously inadmissible applications, which are inadmissible because, for instance they fall outside the time limit of 6 months, and
frankly speaking, I do not think you need a judge in order to count to six.
The second main suggestion of the Wise Persons is to have greater flexibility
in reforming the judicial machinery, by amending the Convention with unanimously adopted CM resolutions. Personally, I support this idea, but only for
amendments concerning the procedure – not substantive rights of course. It is
worth mentioning that NGOs have expressed their support, provided that the
process is accompanied “by provisions requiring transparency and consultation
with key stakeholders including the Court’s users, civil society and National Institutions for the protection and promotion of Human Rights”.
14
Future developments of the European Court of Human Rights
Mr Terry Davis
A third major suggestion by the Wise Persons focuses on improving domestic
remedies for redressing violations of the Convention. It recommends the adoption of a Council of Europe Convention obliging member states to introduce domestic legal remedies to redress violations in particular resulting from overlylong judicial proceedings. Again, this looks obvious. It is a pity that only a few
member states have established these measures to date, and I have therefore
asked my colleagues in the Secretariat to prepare a report on this point for the
Committee of Ministers. On the other hand, I am less enthusiastic about encouraging national courts to ask for advisory opinions on legal questions relating to
the interpretation of the Convention. It may appear attractive at first sight, but
it is an open question as to how much additional work it would create for the
Court.
That said, all these various proposals are now back on the table, and they
deserve to be examined in detail. I am convinced that this Colloquy provides an
excellent opportunity to do precisely that and, why not, perhaps even come up
with a few new ones. The room for improvement is the biggest room in the world
and given the situation the Court is in, we need all the space we can get.
Of course, any future measures will need to be implemented with the active
participation and support of the Court and especially its new President. Judge
Costa has already made it clear that he is determined to devote his term in office
to efforts to reduce the backlog of work at the Court, and I am confident that his
efforts will produce results to the benefit not only of the Council of Europe but
also – more importantly – to the benefit of hundreds of thousands of people who
look up to and trust the European Court of Human Rights as their last chance of
obtaining justice and protecting their human rights. Ž
in the light of the Wise Persons’ Report
15
The 2004 reform and its
implementation
Ms Ingrid Siess-Scherz
former Chairperson of the Committee of Experts for the
improvement of Procedures for the Protection of Human Rights
(DH-PR)
F
irst of all, I should like to thank the authorities of San Marino whole-heartedly
for the organisation and their kind invitation to this conference. I am very proud
and honoured that I am able to present the work of the DH-PR conducted in the
last two years. For me this invitation is a strong signal of the importance that is
attributed to the implementation process of the reform package.
Introduction
As you are all aware, currently we – meaning the Council of Europe, the European Court of Human Rights, member states, civil society – find ourselves in a
reform process. If one recalls the past, it seems as if a certain, dynamic reform
process has always taken place over the last decades, not only since 2000 or 2004,
especially if one recalls the deliberations and aims that formed the background
to Protocol No. 11.
But we have to face a major difference: the situation in which the Court finds
itself, has never been as urgent as it is today. So, in some way the reform process
of the Convention, since 1950, has accelerated and today urgent measures are
necessary, not only on the side of the court, but on all levels of human rights implementation and protection; everybody is concerned and everybody can and
must contribute.
As you might know, I was the chairperson of one of the CDDH’s expert committees, the DH-PR, for the last two years. This Committee was mandated to
work on the implementation of very important measures that form part of the
16
Future developments of the European Court of Human Rights
Ms Ingrid Siess-Scherz
reform process. The discussion on the reform of the Court often refers only to
Protocol No. 14. This protocol is undoubtedly the centre-piece of the reform, but
it is also part of a wider package of interdependent measures adopted by the
Committee of Ministers in May 2004.1
In what follows I shall give you an overview of the work of the DH-PR, the
background, the problems and the hopes and wishes that underlie this very important project, which is all the more important since one major part of the
reform package has not yet come into force.
Why?
The starting point for this new reform process was at the European Ministerial Conference on Human Rights, held in Rome in November 2000 to mark the
50th anniversary of the signing of the Convention.
The Ministers found that “the effectiveness of the Convention system […] is
now at issue” because of “the difficulties that the Court has encountered in
dealing with the ever-increasing volume of applications”. It accordingly called on
the Committee of Ministers to “initiate, as soon as possible, a thorough study of
the different possibilities and options with a view to ensuring the effectiveness
of the Court in the light of this new situation”. It also thought it “indispensable,
having regard to the ever-increasing number of applications, that urgent measures be taken to assist the Court in carrying out its functions and that an in-depth
reflection be started as soon as possible on the various possibilities and options
with a view to ensuring the effectiveness of the Court in the light of this new situation”.2
Following this Conference, work, deliberations and discussions took place in
different groups and committees, at different levels. From the earliest phase of
the reform process on all levels it was recognised that measures taken at the national level would have to form part of any reform package.3 It was clear that
measures could not only focus on streamlining and improving the work in Strasbourg – both at the Court’s level as well on the level of execution of the Court’s
judgments – but that prevention of violations at national level, including improving domestic remedies, should also be a main issue. It has already been
stated by others: human rights protection begins and ends at home.4 It was
1. Declaration “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels”, adopted at the 114th Session of the
Committee of Ministers (12-13 May 2004).
2. Resolution I, “Institutional and functional arrangements for the protection of human
rights at national and European level”, adopted at the European Ministerial Conference on
Human Rights, held in Rome in November 2000 to mark the 50th anniversary of the signing of
the Convention, §16 and §18 (ii).
in the light of the Wise Persons’ Report
17
The 2004 reform and its implementation
obvious that only a comprehensive set of interdependent measures tackling the
problem from different angles would make it possible to overcome the Court’s
present overload. The CDDH was accordingly instructed to prepare a set of concrete, coherent proposals in the three following areas.5 (The first one refers to the
national level, whereas the other two concern the European level.)
` prevention of violations on a national level and improvement of domestic
remedies;
` optimisation of the efficiency of filtering and dealing with subsequent applications;
` improvement and acceleration of the execution of judgments of the European
Court of Human Rights.
In the light of these instructions, the CDDH prepared several draft legal instruments:
` draft Protocol No. 14 to the Convention for the Protection of Human Rights
and Fundamental Freedoms, amending the control system of the Convention,
with an explanatory report;
` draft Recommendation of the Committee of Ministers to member states on
improving domestic remedies, with an explanatory memorandum;
` draft Recommendation of the Committee of Ministers to member states on
verification of the compatibility of draft laws, existing legislation and administrative practices with the standards laid down in the European Convention
on Human Rights, with an explanatory memorandum;
` draft Recommendation of the Committee of Ministers to member states on
the European Convention on Human Rights in university education and professional training, with an explanatory memorandum;
` draft Resolution of the Committee of Ministers on judgments which reveal an
underlying systemic problem.
The final activity report of the CDDH, adopted by the Steering Committee in
April 2004, contained all the draft legal instruments mentioned, together with a
draft Declaration on “Ensuring the effective implementation of the European
3. Introductory report of Mr Walter Schwimmer, Secretary General, for the European Ministerial Conference on Human Rights, Part II, Respect for human rights, a key factor for democratic stability and cohesion in Europe: current issues, November 2000, Council of Europe
Publishing, 44; Activity Report of the Reflection Group on the Reinforcement of the Human
Rights Protection Mechanism, doc. CDDH-GDR (2001) 010, III, June 2001; Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, September 2001, Chapter VI, para. 44 ff.
4. Mr Walter Schwimmer, Secretary General, statement made at the opening session of the
Ministerial Conference in November 2000, Council of Europe Publishing, 20.
5. Decision of the Ministers’ Deputies adopted on 13 November 2002 at the 816th meeting,
item 1.5.
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Future developments of the European Court of Human Rights
Ms Ingrid Siess-Scherz
Convention on Human Rights at national and European level”, for examination
and adoption by the Committee of Ministers at the 114th Ministerial Session in
May 2004.
The Declaration of the Committee of Ministers contains the key recommendations that will have to be implemented by member states, namely:
` Recommendation Rec (2004) 4 on the European Convention on Human
Rights in university education and professional training;
` Recommendation Rec (2004) 5 on the verification of the compatibility of draft
laws, existing laws and administrative practice with the standards laid down
in the European Convention on Human Rights;
` Recommendation Rec (2004) 6 on the improvement of domestic remedies.
Besides these three recommendations, some further documents that had
already been adopted at an earlier stage were also regarded as measures that aim
to prevent human rights violations at national level and were referred to in the
Declaration:
` Recommendation Rec (2002) 2 of the Committee of Ministers on the reexamination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights;
` Recommendation Rec (2002) 13 of the Committee of Ministers on the publication and dissemination in the member states of the text of the European
Convention on Human Rights and of the case-law of the European Court of
Human Rights.
The measures aiming at the prevention of human rights violations at national
level seek to stress the responsibility of national authorities according to the
principle of subsidiarity. If fully applied, these measures will relieve the pressure
on the Strasbourg Court in various ways: they should reduce the number of individual applications where a possible incompatibility of national law with the
Convention has been avoided, or where the alleged violation has been remedied
at the national level, but also because the work of the Court will be made lighter
if the case has been the subject of a well-reasoned decision at the national level.
It goes without saying that these effects will only be felt in the medium to long
term.
In the following I will not present to you the content of these recommendations. They can be easily found on the Council’s Web site.6 I would rather discuss
with you the process of implementation; I would like to outline the importance
of this project.
6.
http://www.coe.int/t/e/human_rights/ECHRReform.asp/
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19
The 2004 reform and its implementation
How?
Following the Declaration of May 2004, the Committee of Ministers mandated the CDDH to deal with the European as well as the national level, being
more precisely, the improvement of the execution process and the implementation of the five recommendations.7
In the following months the DH-PR set up two working groups.
Working group A
The first working group was instructed to work primarily on two aspects:8
` to draft proposals for amendments to the Rules of the Committee of Ministers
for the supervision of the execution of judgments and of the terms of friendly
settlements;
` to come up with practical suggestions to the Ministers’ Deputies to address
situations of slow or negligent execution of judgments of the Court.
The reasons for the first aspect of this work – the amendment of the Rules –
were the amendments contained in Protocol No. 14. It was deemed advisable to
submit a comprehensive restructured set of Rules; for example, new regulations
concerning friendly settlements according to the amendments made by the protocol, but also for new powers given to the Committee of Ministers by the new
Article 46.
This exercise was completed in April 2006 (final activity report of the
CDDH9).
Work regarding the second aspect of this working group, being the suggestions concerning improvements in the execution process, is still under way. The
first phase of the work was primarily dedicated to drafting the new rules for the
Committee of Ministers as quickly as possible; whereas the discussion concerning slow and negligent execution focused on the possible reasons for delays and
therefore primarily addressed its prevention.
The Deputies felt that besides this aspect, in the next round of work more
thought should be given to practical suggestions. So last year, the CDDH was
mandated to prepare a draft recommendation to member states on efficient domestic capacity for rapid execution of the Court’s judgments and developing
further practical proposals for the supervision of execution of judgments in situations of slow or negligent execution.10
7. Decision No. CM/864/03062004 adopted by the Ministers’ Deputies at their 886th meeting. It is reproduced in document CDDH (2004) 019.
8. Activity Report of CDDH, doc. CDDH (2006) 008, para. 7.
9. Activity Report of CDDH, doc. CDDH (2006) 008.
10. Decision No. CM/867/14062006, adopted on 14 June 2006.
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Future developments of the European Court of Human Rights
Ms Ingrid Siess-Scherz
It has to be underlined that since the end of last year, working Group A has
been composed both of experts from the national level and of colleagues from
Strasbourg, working in the Committee of Ministers, so that as much experience
and insight on all levels as possible is guaranteed in order to achieve the best results.11
Working Group B
The second working group is given a more difficult task: following the implementation of the five recommendations on national level. There was consensus
amongst all member states that the basis of the exercise was that it had to be constructive. Good practice should be established and distributed to member states.
It has to be noted that at the beginning of this work, only information provided by member states was used to assess the state of implementation of the five
recommendations. Non-governmental organisations, as well as national institutions for the promotion and protection of human rights were not invited to
provide additional information. Furthermore, information was not sought from
other Council of Europe bodies at this stage.
Member states were repeatedly invited to submit information on efforts undertaken to implement the five recommendations. It was highlighted that such
information should provide a realistic picture of domestic law and practice, including good practices and lacunae. Member states replied to these appeals by
submitting a considerable amount of information.12
I should also note that the working methods of this group were outstanding:
following a suggestion by the Secretariat responsible for the committee, each
member of this group served as rapporteur, meaning that he or she served as a
main point of contact for the Secretariat. This expert was asked for a more detailed examination of the draft analysis submitted by the Secretariat.13
Subsequently, the Committee of Ministers decided to follow this very important process more closely. Five co-ordinators were appointed by the Committee
of Ministers in order to follow the work carried out by the CDDH on the five recommendations with a view to preparing the GR-H political conclusions on the
follow-up exercise.14
11.
12.
13.
14.
See CDDH Interim report of April 2007.
See Activity report of CDDH, doc. CDDH (2006) 008, para. 29 and 30.
Activity report of CDDH, doc. CDDH (2005) 008, para. 31.
Activity report of CDDH, doc. CDDH (2006) 008, footnote 8.
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21
The 2004 reform and its implementation
Main problems
Although, finally, all member states contributed to the exercise, there were
some problems. The information provided by member states was often incomplete (it concerned only some aspects of the measures required) or uneven and
difficult to compare and to assess – especially since the only source of information so far having been the member states themselves.
Therefore, in May last year, the Deputies were of the opinion that the review
of implementation of the five recommendations concerning measures to be
taken at the national level should be pursued with a view to obtaining a better assessment of their actual implementation and providing member states with continued encouragement to implement them. The following mandate was adopted.
Member states should fill the gaps where information is still lacking. The review
exercise should be deepened by focusing on the effectiveness and impact of implementation measures, particularly in three priority areas:15
` re-examination or reopening of cases following judgments of the Court;
` verification of compatibility of draft laws, existing laws and administrative
practice with the ECHR;
` improvement of domestic remedies.
At the same time, the review exercise should be widened by involving other
bodies and institutions, both within the Council of Europe and beyond, and inviting them to submit comments on the implementation of the recommendations.
Following this mandate, the Secretariat and working group B of the DH-PR
tried to encourage NGOs and national institutions to contribute and comment
on the documents that had been delivered by the respective member states. Unfortunately, at first, only a very small number of NGOs and institutions responded to this invitation. So, after the last meeting of the DH-PR in November
2006, a further letter was sent out, again requesting information on the situation
of human rights, especially in the light of the five recommendations.16 The result
of this further invitation was very frustrating. For the time being, only three
further contributions were received.
In my opinion there are different reasons for this reluctance. I am absolutely
convinced that it is not lack of interest. The information from member states
which came in during the last two years was very considerable. The main document contains over 400 pages (covering all forty-six member states) and it cer15. See Declaration on sustained action to ensure the effectiveness of the implementation of
the ECHR at national and European level (adopted by the Committee of Ministers on 19 May
2006 at its 116th session).
16. See CDDH Interim report of April 2007.
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Future developments of the European Court of Human Rights
Ms Ingrid Siess-Scherz
tainly difficult to assess the information in its totality; the information from
member states was accumulated by many different organs. NGOs have only
limited resources. They have to decide whether time and resources will lead to
any results, meaning to an improvement of the human rights situation in the
country where they are active.
But at this point I would like to repeat our invitation to contribute to this exercise. We all know that it is burdensome, sometimes tiring. But we really appreciate any contribution, any information we get. Of course we do not expect
NGOs to comment on the whole document, not even on the complete information we got from each member state. But we are convinced that NGOs can
comment on aspects that are directly linked to their work.
The states will have to react to the assessment, to criticism. If we get no information from civil society, some member states might use this as evidence that
there is nothing to be improved in their efforts on raising the level of human
rights protection.
In addition to this written procedure, it is intended to organise an event with
civil society in September this year. The exact topic and the participation will
depend on the further work of the group and the responsible Committees.
At the last meeting, an exchange of views on contributions expected from
other Council of Europe bodies took place. Colleagues from the Court Registry,
the secretariat of the European Commission for the Efficiency of Justice, the
Venice Commission, the Parliamentary Assembly and the Office of the Commissioner for Human Rights were invited. Positive impact from these contacts are
envisaged, the work undertaken on all sides will definitely influence and enhance
the process on all sides.
Parallel to these contacts, a further questionnaire for member states was elaborated, with more targeted questions, in order to gather more precise information from member states. At the moment the working group is examining this
new information and trying to undertake a new assessment.
Assessment of the process
To assess the project from my personal point of view, I should like to underline
that the review process concerning the implementation of the recommendations
does not intend to create a new monitoring exercise. The aim is not a heavy bureaucratic reporting obligation, like that required by the United Nations human
rights bodies, but a means of discovering an accurate picture of the present situation in the member states on the various matters covered and a way of helping
the states to make best use of the various instruments, following the examples of
good practice which develop over time.
in the light of the Wise Persons’ Report
23
The 2004 reform and its implementation
The fact that the recommendations are instruments that are not legally
binding does not mean that they are therefore ineffective. In their totality they
form a perfect check list, helping member states in their efforts to improve their
human rights protection. The importance of the measures listed in these instruments is uncontested. So it was not surprising that some of the recommendations are referred to in the report of the Wise Persons.
I should like to stress that this is a very important exercise at the intergovernmental level, with the purpose of alleviating the workload of the Court. The complete and full implementation of the five recommendations that form the heart
of this process would ensure that the level of human rights standards could be
raised in each member state. The influx of human rights applications would not
necessarily diminish to a great extent. Comparative studies have shown that the
better the Convention is known at national level, the more people tend to turn
to Strasbourg. But the applications could be more easily examined, and many
would be inadmissible because the national authorities and courts have already
done their best to fulfil the human rights obligations of their respective country.
In this context I should like to note that especially the discussion with the registry revealed – not very surprisingly – that the introduction of domestic remedies or adoption of general legislative measures is of utmost importance. In some
member states, like Turkey, Romania, Croatia, Denmark, France, Italy, the Netherlands, Poland, Spain, Portugal and Slovakia, legislative reforms were taking
place. It was not yet possible to demonstrate the positive impact of these initiatives with exact figures; nevertheless it was felt to have a positive impact on the
workload of the Court.
And I’m convinced. I do think that every delegation that takes part in this exercise has realised very clearly that each and every state can and also must
improve its human rights standards. Although the process of implementation is
difficult and every member state encounters problems, very positive effects can
already been reported. Many member states have definitely taken measures in
order to improve human rights protection. I should like to give some examples.
These examples are in no way exhaustive; they should only be illustrative.
` Following the recommendation on re-examination and reopening of proceedings, Germany has introduced this instrument in civil proceedings. The
new law entered into force in January this year.
` Serbia has introduced re-opening in both civil and criminal proceedings.
` In Cyprus a human rights sector of the Attorney General’s Office was set up.
` In Greece, at the beginning of 2005, a special Commission was set up, under
the presidency of a “Conseiller d’État”, composed of senior magistrates and
university professors. It examines systematically the jurisprudence of the
European Court of Human Rights and the legislative changes that are required according to the Strasbourg judgments.
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Future developments of the European Court of Human Rights
Ms Ingrid Siess-Scherz
` Azerbaijan broadened the competences of the Constitutional Court in 2004
by including the establishment of a constitutional complaint.
The improvement of these standards is a dynamic process and it will never
end. Human rights never stand still. Hopefully. Every official, every professional
working with human rights can improve the situation of human rights at national
level and therefore can help to improve the situation of the Court.
So my clear message to you all is: Please take part in this exercise. It is essential
that all actors and institutions concerned mobilise themselves in order to exploit
to the full the important potential which this reform offers. There is not a single
member state that could claim it has already fulfilled all requirements of the recommendations. Human rights are dynamic, they are demanding, they mean
work, they mean steady movement.
The review on the implementation of the recommendation is – according to
my personal opinion – one of the most important projects within the intergovernmental work of the Council and it can contribute to guaranteeing the effectiveness of the Court so that the Convention and the Court can together remain
the main standard-setter of human rights throughout Europe. Investing in
human rights does not mean that resources only go to one single institution, the
Court in Strasbourg. Investing in human rights guarantees the improvement of
our own living conditions. Not only in Strasbourg. Everywhere. And for everyone.
Thank you for your attention. Ž
in the light of the Wise Persons’ Report
25
Presentation
of the Wise Persons’ Report
Mr Gil Carlos Rodríguez Iglesias
Chair of the Group of Wise Persons
I
t is my task today to present to you a report with which you are already familiar,
either because you are the recipients, or simply because it was published by the
Council of Europe’s Committee of Ministers on 16 November last year.
This is a collective report which has been approved by all the members of the
Group of Wise Persons. In presenting it, I shall try to speak for the Group, which
I had the honour of chairing, remaining faithful to the spirit of consensus which
guided our work. Nonetheless, whenever they depart from the text of the report,
my comments will necessarily be personal, for which I take sole responsibility.
In presenting the report, I shall proceed as follows:
First of all, I shall try to explain how we understood our terms of reference.
This is a vital point, since it obviously conditioned our approach to the whole
report, and also the content of our recommendations.
Secondly, I shall discuss our proposals.
Finally, I shall look briefly at each of the four categories of measure which we
proposed and make a few comments on some of our suggestions.
The terms of reference, given to the Group by the Heads of State and Government of the Council of Europe’s member states in the Action Plan which they
adopted at the Warsaw Summit in May 2005, are referred to in section 1 of the
report. The Group was asked to “consider the long-term effectiveness of the
ECHR control mechanism, including the initial effects of Protocol No. 14 and the
other decisions taken in May 2004” and “to submit, as soon as possible, proposals
going beyond these measures, while preserving the basic philosophy underlying
the Convention.”
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Future developments of the European Court of Human Rights
Mr Gil Carlos Rodríguez Iglesias
First of all, the Group took these terms of reference to mean that its proposals
should cover structural changes to ensure the judicial machinery’s long-term effectiveness, rather than changes in the European Court’s working methods. This
distinguishes its report from the one presented late in 2005 by one of its members, Lord Woolf, which specifically dealt with working methods – and indeed
provided an exceptionally useful reference point for the Group’s work.
Secondly, we took the terms of reference to mean that we should confine our
discussions to the model for judicial protection of human rights enshrined in the
Convention and its Protocols, the most distinctive feature of which is the right
of individual petition. For that reason, we were against leaving the Court free to
decide whether or not to examine cases – like the US Supreme Court, with its
certiorari procedure – since we felt that this would imperil the substance of the
right of individual petition, and so contradict the Convention’s underlying philosophy.
In fact, the explosive increase in the number of individual applications is the
very thing which most threatens the efficiency, and even survival, of our human
rights protection system. We emphasised that this increase had created a serious
situation which was likely, in spite of the various measures adopted by the Court,
to get worse and lead – if not remedied – to collapse of the whole system. The
report’s main proposals were accordingly aimed at tackling that fundamental
problem.
Finally, the Group’s terms of reference expressly stated that it was to make
proposals “going beyond” Protocol No. 14, which we therefore took as our starting point. I can only regret that problems have arisen in the meantime to stop the
Protocol from coming into force immediately.
Having identified the increase in the number of disputes, and the excessive
case-load this imposed on the Court as the main problem, the Group felt obliged
to make proposals which would relieve the Court of numerous cases which
should not be allowed to “distract” it from its vital task of guaranteeing human
rights. I can tell you that its members all agree that a high-level international
court of this kind should not spend much of its time ruling on the admissibility
(or, more accurately, inadmissibility) of individual applications, or deciding repetitive cases, of which there are also a great many. On the contrary, it should be
able to concentrate on monitoring states’ respect for human rights, formulating
human rights principles and standards, and defining a minimum level of protection which all states must provide.
With this end in view, we proposed a series of measures which, taken together,
should allow the system to function effectively. These proposals apply, not only
to the functioning of the Convention’s judicial control system, but also to decentralised initiatives by member states. In this respect, the report points out that
the subsidiarity principle is a basic part of Europe’s human rights protection
in the light of the Wise Persons’ Report
27
Presentation of the Wise Persons’ Report
system. In fact, national remedies, which are the first line of defence for the rule
of law and human rights, must be effective – and the public must know about
them. National courts bear prime responsibility for protecting human rights
within their own legal systems and ensuring respect for the rights guaranteed by
the Convention. Some of our proposals are intended to give them a bigger role
in this.
The measures proposed in the report are broken down into ten points and
grouped under four headings: structure and modification of the judicial machinery, relations between the Court and the States Parties to the Convention, alternative or complementary means of resolving disputes, and the institutional
status of the Court and the judges.
The report contains two proposals on the structure and modification of the
judicial machinery.
Our proposal on greater flexibility of the procedure for reforming the judicial machinery is designed to enable us to adapt it to new circumstances
without having to activate the cumbrous procedure required for reform of the
Convention.
Basing ourselves on EU rules and the EU’s experience, we propose reforming
the Convention to allow the Committee of Ministers to amend some of its provisions on the judicial system.
For this purpose, the report envisages a standard-setting system based on
three levels of rules – the Convention and its Protocols, the Court’s Statute, and
texts (e.g. the Rules of Court) which the Court can itself amend. The innovation
here is the Group’s proposal for a second level of rules – those embodied in the
Statute, which could be amended by unanimous resolution of the Committee of
Ministers, approved by the Court. Paragraph 49 of our report indicates provisions in the Convention which could, we feel, be included in the Statute and
therefore covered by the simplified amendment procedure, and also provisions
which could be kept in the Convention or included in the Statute, but would not
be open to “simplified” amendment. Our aim here was to exclude provisions
which regulate essential institutional, structural and organisational features of
the Convention’s judicial system, i.e. the establishment of the Court, its jurisdiction and the status of its judges, from simplified amendment.
A new judicial filtering mechanism is the report’s most innovative structural proposal. The aim is to relieve the Court of a large number of cases, so that
it can focus on its essential role, but also to ensure that judicial decisions attended by all the requisite guarantees will still be taken on applications which it
no longer hears. We accordingly propose the setting-up of a Judicial Committee,
attached to (but distinct from) the Court, to deal with all applications which raise
admissibility issues, or which can – on the basis of the Court’s well-established
case-law – be declared manifestly well or ill-founded. When empowered to rule
28
Future developments of the European Court of Human Rights
Mr Gil Carlos Rodríguez Iglesias
on the merits, the Committee would have the same powers as the Court in the
matter of just satisfaction.
To ensure the reform does not make the system more ponderous, rather than
less, we suggest that the Judicial Committee’s decisions should not be open to
appeal. In exceptional cases, however, the Court would have the power to review
them of its own motion. The decision to do this would lie with the President of
the Court and the Chair of the Committee, who – we propose – should be a
member of the Court.
The Committee’s members would be judges whose independence would be
fully guaranteed, with all the qualifications required for judicial office. We also
propose that the Court assess their professional qualifications and language
skills before the Parliamentary Assembly elects them. At this point, I would
venture to voice an idea which is not in the report, and is not easily formulated:
in a sense, the judges on the Committee would normally, but not necessarily, be
junior to those of the Court – junior, but not “less of a judge”.
The report proposes that the Committee has fewer members than the
Council of Europe has member states, their number being determined and,
when necessary, adjusted by the Committee of Ministers.
The Committee’s decisions would normally be taken by three-judge benches.
Following Protocol No. 14, however, the Group proposes that manifestly inadmissible cases be heard by a single judge.
Institutionally and administratively, the Committee would come under the
Court’s authority. Its chair should be a member of the Court, appointed by the
latter for a set period. It should be assisted by the Registry of the Court. The
Group considers that a section of the Registry might usefully be assigned to the
Committee, but that there should be no rigid demarcation. On the contrary, the
Registry’s human resources should be deployed to optimum effect in the service
of both bodies.
Serving both, the Registry would have the task, not only of preparing all applications for hearing (as it does at present), but also of referring them to the
body it considers best qualified to deal with it. Obviously, neither the Court nor
the Committee would be bound by its opinions in this matter. The Committee
could refer applications to the Court, not simply on grounds of jurisdiction, but
whenever it felt that they raised issues better dealt with by the latter. Similarly,
the Court could refer applications to the Committee on grounds of jurisdiction,
but could also decide to hear them itself for reasons connected with the proper
administration of justice, e.g. for reasons of procedural economy.
Concerning relations between the Court and States Parties to the Convention, I shall only comment on a few points.
in the light of the Wise Persons’ Report
29
Presentation of the Wise Persons’ Report
First of all, I should like to try and clarify the thinking behind our proposal on
advisory opinions, since some of the reactions I have heard make me suspect
that it has not always been understood.
For that reason, I should like to insist on the point already made in
paragraph 80 of our report, namely that we are not trying to make preliminary
rulings in the European Convention’s judicial system, of the kind provided for in
EU law.
Our purpose here is different. The proposal is designed to make it possible for
national supreme courts to ask the European Court of Human Rights for a ruling
on any fundamental question of general interest concerning interpretation of the
Convention or its Protocols.
Our feeling was that this would promote dialogue between national supreme
courts and the European Court. Essentially, however, this procedure is meant to
be exceptional – hence the stringent conditions laid down in paragraph 86 of our
report, which also allows the Court to refuse to give an opinion.
Under the same heading (“Concerning relations between the Court and the
States Parties to the Convention”), there are two proposals which we regard as
particularly important for ensuring the long-term effectiveness of the Convention’s supervisory machinery. They are concerned with the improvement of domestic remedies for redressing violations of the Convention, and changes in
the system for the award of just satisfaction in cases where the Court – or the
Judicial Committee – finds that the Convention has been violated.
These two proposals are intended to increase the Strasbourg system’s subsidiary character by giving national courts a bigger role in the matter of compensation for damage caused by violations of the Convention – but without diminishing the European Court’s function as guarantor of the rights protected by that
text. We are convinced that our two proposals would reduce the burden on the
European Court, and would also make judicial protection of those rights more
effective by improving the procedures for reparation of damage caused by violating them.
The starting point of our first proposal is Recommendation (2004) 6 of the
Committee of Ministers to member states on the improvement of domestic remedies, which recommends that member states
“I. ascertain, through constant review, in the light of case-law of the Court, that
domestic remedies exist for anyone with an arguable complaint of a violation
of the Convention, and that these remedies are effective, in that they can
result in a decision on the merits of the complaint and adequate redress for
any violation found;
II. review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic
30
Future developments of the European Court of Human Rights
Mr Gil Carlos Rodríguez Iglesias
remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court;
III.pay particular attention, in respect of the afore-mentioned items I and II, to
the existence of effective remedies in cases of an arguable complaint concerning the excessive length of judicial proceedings.”
Essentially, what the Group is proposing is that explicit and detailed provisions be inserted in the Convention, requiring member states to adopt the measures advocated in this recommendation, and stating that the action they take for
that purpose must respect certain criteria which can be deduced from the
Court’s case-law.
The second proposal is more innovative. It involves amending Article 41 of
the Convention and leaving states to determine the amount of compensation in
cases where the Court or the Judicial Committee decide that there is a breach of
the Convention.
This proposal is intended to relieve the Court (and Judicial Committee) of
tasks which national bodies can discharge more effectively, e.g. when a case’s
complexity makes it necessary to seek expert opinions.
To ensure that the proposed change does not create additional procedural
problems for victims, or intolerably protract administrative and judicial proceedings, the proposal covers a number of points which I shall briefly summarise:
` The Court or Judicial Committee will have power to decide on just satisfaction when it considers this necessary to protect the victim effectively.
` States left to decide on compensation will be required to provide it within a
time-limit set by the Court or Judicial Committee.
` Each state will be required to designate a single judicial body with responsibility for determining the amount of compensation.
` Unnecessary formalities or the charging of unreasonable costs or fees must
not impede the procedure.
` The amount of compensation must be determined in a manner consistent
with the criteria laid down in the Court’s case-law.
` The national decision will be open to challenge before the Court or the Judicial Committee.
Concerning this last possibility, I venture to anticipate a question which will
certainly be asked, and which our Group itself considered. Surely allowing applicants to come back to the European Court will invalidate the reform or even
make it counter-productive, since it may well complicate and protract the proceedings without substantially reducing the burden on the Court?
We do not think so.
in the light of the Wise Persons’ Report
31
Presentation of the Wise Persons’ Report
Of course, there is no guarantee that this will not happen in certain cases, although the Court’s being able to waive the rule and determine compensation
itself should – depending on circumstances – allow it to avert this danger,.
Be this as it may, we believe that this reform would have very positive longterm effects, since every member state would have its own procedure for determining compensation in cases where the Court found that there had been a violation – and this would usually make it unnecessary to involve the latter again.
The third group of proposals concerns alternative or complementary
means of resolving disputes, which may often prove more effective than judicial proceedings, and so relieve the Court of many cases.
The report contains two proposals on this.
The first concerns friendly settlements and mediation, and involves encouraging parties to use these means at national or Council of Europe level
whenever the Court or Judicial Committee considers that an admissible case can
be resolved in this way. Proceedings in such cases would be suspended for a
limited and specified period pending the outcome of mediation.
However, there would be no question of parties being obliged to accept this
form of settlement, which would always require their consent.
The purpose of the second proposal is to extend the duties of the Commissioner for Human Rights.
We go further than Protocol No. 14, which allows the Commissioner to
present written observations and participate in hearings before the Court, and
believe that he should be given the resources he needs to play a more active part
in the Convention system.
We have pinpointed a number of functions which he could usefully discharge.
Specifically, he could: take action on judgments in which the Court found that
there had been serious violations of human rights; assist national mediation
structures and promote the setting-up of such bodies to resolve human rights violations at national level; extend his current co-operation with national and regional ombudspersons and national human rights bodies.
Finally, the last part of the report is devoted to the institutional status of the
Court and the judges. The measures it proposes are not concerned with the explosive increase in the number of disputes, nor are they designed to reduce the
burden on the Court. They are measures which we consider important to ensure,
in the long term, the quality and effectiveness of the judicial machinery and the
independence of the Court and its judges.
These measures are:
` introduction of a social security scheme for judges, which we consider vital to
protecting their independence;
` assessment of the professional qualifications and language skills of candidates
for judgeships during the election procedure;
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Future developments of the European Court of Human Rights
Mr Gil Carlos Rodríguez Iglesias
` an eventual reduction in the number of judges, bringing it into line with the
Court’s functional requirements and the need to ensure consistency of caselaw;
` giving the Court maximum operational autonomy, particularly with regard to
presentation and management of its budget, as well as appointment, deployment and promotion of its staff.
Both on the Group’s behalf and on my own, I should like to thank the organisers of this Colloquy and the participants for the attention they have given to our
report.
I am well aware that the report is not meant to be “approved”, but to be studied
and discussed. The Group’s members hope that it will play a useful part in promoting adoption of the measures needed to ensure the long-term effectiveness
of the judicial control machinery established by the European Convention on
Human Rights – itself one of Europe’s greatest achievements. Ž
in the light of the Wise Persons’ Report
33
Comments
on the Wise Persons’ Report
from the perspective of the European
Court of Human Rights
Mr Jean-Paul Costa
President of the European Court of Human Rights
M
inister, Mr Secretary General of the Council of Europe, Mr Chairman of the
Group of Wise Persons, Excellencies, ladies and gentlemen,
I would first like to extend my sincerest thanks to the authorities of the Republic of San Marino for the warmth and quality of their welcome, in line with
their legendary reputation for hospitality. For the past four months San Marino
has chaired the Committee of Ministers in the person of Minister Fiorenzo Stolfi,
and one of the highlights of its Chairmanship will undoubtedly be this colloquy
of such importance for the future of the European system for the protection of
rights and freedoms.
On 19 January I had the pleasure of meeting you, Minister, at the Court, and
on 21 February the Court had the honour of receiving the Captains Regent – the
Heads of State of San Marino – and yourself at a formal hearing.
I am glad that, through the considerable delegation which I am leading, comprising the two Vice-Presidents of the Court, two other judges including Mrs Antonella Mularoni, the judge elected in respect of San Marino, and its Registrar
and Deputy Registrar, the Court can in some way repay this visit.
I should also like to emphasise that the Republic of San Marino has for many
years enjoyed a special relationship with our Court; indeed, it was here that, on
the initiative of Federico Bigi, the former judge in respect of San Marino, the only
plenary session of the Court ever held outside its seat in Strasbourg took place
on 3 September 1992.
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Future developments of the European Court of Human Rights
Mr Jean-Paul Costa
The priorities defined from the outset by the San Marinese Chairmanship
show how San Marino has sought to place human-rights protection at the heart
of its activities. As President of the European Court of Human Rights, the keystone of the system, I welcome this.
It was against this background that Mr Gil Carlos Rodríguez Iglesias, Chairman of the Group of Wise Persons, submitted the Group’s report on the longterm effectiveness of the Convention’s control mechanism to the Committee of
Ministers of the Council of Europe on 17 January 2007 and presented it again
today. This colloquy will provide an opportunity for some particularly wellqualified personalities to comment on what is now usually known as the “Wise
Persons’ Report”.
I wish to offer my sincere congratulations to the “Wise Persons” and, in particular, their Chairman, Professor Gil Carlos Rodríguez Iglesias, the eminent
former President of the Court of Justice of the European Communities, and the
other ten particularly distinguished members of the group, for accomplishing
the task entrusted to them by the Committee of Ministers following the decision
of the Heads of State and Government of the member states of the Council of
Europe at their Third Summit in Warsaw in May 2005.
The Wise Persons, working at an intensive pace, have managed in the space
of a year to produce a most interesting report containing numerous proposals.
One may agree or disagree with individual proposals, but they form a coherent
and stimulating whole, which to my mind fulfils the task the Wise Persons were
assigned with the aim of assisting the Court.
On taking office on 19 January I announced that a process of reflection on the
Wise Persons’ Report would be initiated within the Court and the Registry. The
process is now almost complete.
Accordingly, what I am going to say today will give you the Court’s first impressions on the report. In April, and at all events in time for the ministerial
session on 10 and 11 May, the Court will express its official opinion on the report
and the proposals set out in it.
The report is to be seen as a continuation of the development of the protection
machinery of the European Convention on Human Rights through a series of
reforms over the past ten years.
I feel that it is important, by way of introduction, to put these various reforms
into perspective.
Putting the various reforms into perspective
As you know, the main reform of the supervisory machinery in the European
Convention on Human Rights resulted from Protocol No. 11, which, in particular, created the single Court as is in operation today.
in the light of the Wise Persons’ Report
35
Comments on the Wise Persons’ Report
However, this overall reform of the system very soon proved insufficient on
account of the substantial changes that took place within the Council of Europe
between the start of the drafting process and the implementation of the reform
on 1 November 1998.
The accession of the states of eastern Europe led to a considerable increase in
the number of applications lodged. It should be noted that, apart from Turkey,
the four countries generating the most applications are east European states that
joined the Council of Europe in the 1990s, first among them in terms of number
of applications being, by some distance, the Russian Federation.
The Court has been far from inactive. Besides the institutional reforms which
I shall return to in a moment, it has considerably increased its efficiency and productivity, not least as a result of the reorganisation of the Registry, even before
Lord Woolf, another eminent member of the Group of Wise Persons, submitted
his report on the Court’s working methods in late 2005. Indeed, the Court now
works on the basis of the conclusions set out in the Woolf report.
Shortly after the entry into force of Protocol No. 11 and the beginnings of the
new Court, it became apparent to everyone that a further reform was urgently
needed in order to preserve and strengthen the long-term effectiveness of the
control system, owing to the continuous increase in the Court’s workload. This
was what my predecessor, Luzius Wildhaber, referred to, and advocated, as a
“reform of the reform”.
Following the Rome ministerial conference in November 2000 a new process
was accordingly initiated. Several years of negotiations between the States
Parties and their representatives were required to draw up Protocol No. 14,
which was opened for signature on 13 May 2004. Protocol No. 14 is, in my view,
an essential tool for the Court to be able to cope effectively with the continuous
accumulation of new applications. It would enable the Court to increase its
output of judgments and decisions by approximately 25% with no increase in its
budget or resources. By converse implication, however, it is quite clear that if this
instrument does not come into force quickly, the Court will either be unable in
practice to deliver a greater number of judicial decisions, thereby increasing the
backlog and the time taken to deal with applications, or it will have to ask the
Council of Europe, and hence the member states, for increased budgetary and
human resources without encroaching on those of the rest of the Organisation.
Realising the urgent need for this new reform, the Committee of Ministers
recommended ratification of Protocol No. 14 within two years – a time span that
was, if not rapid, at least reasonable – that is, by May 2006.
Admittedly, 2 years and 10 months after the Protocol was opened for signature, it has been signed by all member states without exception, but unfortunately it has still not been ratified by the Russian Federation and has thus been
prevented from coming into force. This state of affairs is both regrettable and
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Future developments of the European Court of Human Rights
Mr Jean-Paul Costa
barely comprehensible, as the Russian Federation played an active role in drafting the protocol, which indeed it has signed, and its President tabled a bill in Parliament authorising ratification, but the bill has yet to be passed. A vote was held
in the State Duma on 20 December 2006 and was marked in particular by a large
number of abstentions; this would appear to foster hopes that the undecided can
be persuaded and hesitations dispelled through explanations.
The Court, confident that Protocol No. 14 would come into force quickly, has
done its utmost to adapt its working methods and amend the Rules of Court.
Consequently, once the Protocol has come into force, very little effort will be
needed at internal level for it to be applied immediately. It therefore seems highly
desirable that the last remaining ratification should take place as soon as possible. With the help of my colleagues from the Court and the Registry, I am striving
to persuade our Russian friends of the need for ratification, but I know I can also
count on all the component parts of the Council of Europe: the Committee of
Ministers, the Secretary General, the Parliamentary Assembly, not forgetting the
member states themselves.
The protocol’s entry into force is certainly very important for us and for the
stability of the system, because it provides the Court with essential tools for its
survival in the current phase of reform, which, if we are realistic, is likely to take
many years. I strongly believe that this is in the interests of the Russian Federation itself and its citizens. Despite difficulties, which, indeed, many other states
have experienced in the past, the rule of law is making progress there, as is shown
in particular by the increased sensitivity of the Russian judicial system to the application and implementation of the Convention. I formally urge the Russian
Federation to ratify Protocol No. 14 and, for reasons which I do not wish to
examine in detail here, but which are very important, to do so before 1 July this
year. I do not think I am being too optimistic in hoping that my call will be heard.
With regard to the Wise Persons’ Report itself, we must also bear in mind that
the terms of reference assigned to the Wise Persons in Warsaw in May 2005 instructed them to consider the long-term effectiveness of the Convention’s
control mechanism, including the initial effects of Protocol No. 14, and indeed
the Wise Persons worked on the principle that Protocol No. 14 was in a sense “a
starting point” (paragraph 33 of the Group’s report).
It seems essential to me, before going any further with the discussion of the
report itself, to recapitulate the general structure of the reform process. The
Wise Persons’ Report presupposes Protocol No. 14, and cannot, unless we are to
betray the intention expressed unanimously by the Governments in Warsaw, act
as a substitute for it or a kind of “Plan B”. The recent history of the construction
of Europe, moreover, has shown us what “Plan Bs” entail …
Obviously, and this is the very purpose of this colloquy, there is nothing to
stop us from examining the Wise Persons’ Report straight away, but the opinion
in the light of the Wise Persons’ Report
37
Comments on the Wise Persons’ Report
we shall be giving on the report is necessarily contingent on the entry into force
of Protocol No. 14, if you will excuse me for the insistence with which I am stressing this requirement.
As experience shows, reform of the Convention is a quasi-permanent and relatively slow process. The flow of applications to Strasbourg is increasing continuously and there is a risk that this increase will outstrip the pace of the reforms.
Just looking at 2006, a comparison with 2005 reveals an increase of 11% in the
total number of new applications, which would mean the figure doubling in
about six years. The Wise Persons themselves speak of an explosion in the
number of cases. It should not be forgotten that over the past nine years the Registry has grown from 250 to 520 staff and, thanks to the unstinting efforts of the
judges and members of the Registry, the Court was able to decide almost 30 000
cases in 2006. This is a far cry from the 3 657 decisions delivered in 1998, the year
in which the new Court came into being. Needless to say, the ratio between the
number of decisions and the number of staff (I am not even talking about the
number of judges, which has remained the same; I wish to stress this point in
reply to the Secretary General’s comments earlier) has increased considerably
and has almost quadrupled in nine years. The Court and its Registry have therefore played a large part in the reform without any changes to the basic legal instruments, but we might ask ourselves whether this effort to increase output –
although this term is scarcely appropriate to the performance of a judicial activity – has not reached its physical limits, or at any rate is not approaching them.
On this subject, another figure – the 90 000 pending cases – cannot be anything
other than a cause for concern. It is worth noting that if, by some impossible
miracle – which, above all, would be undesirable since it would mean the demise
of human-rights protection in Europe – no further applications were lodged, it
would take at least three years to deal with the cases that are already pending.
This illustration by way of an absurd example shows the inevitable nature of the
reform process. It is therefore time to start examining the Wise Persons’ Report,
which, as regards the medium and long term, provides an excellent basis for reflection …
This brings me to the second and last part of my contribution.
The Court and the Wise Persons’ Report
Let us start with the Court’s position vis-à-vis the Wise Persons’ Report as a
whole.
It is fair to say, I think, without the risk of being contradicted, that this report
cannot be regarded as revolutionary. But are the Wise Persons to be blamed for
that? I do not think so, bearing in mind both the limitations of the exercise they
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Future developments of the European Court of Human Rights
Mr Jean-Paul Costa
were asked to conduct and the various constraints in institutional terms and in
terms of resources.
The report presupposes that the two cornerstones of the European system are
to be maintained, namely judicial supervision and the right of individual application. These are clearly what make the mechanism so original and lend it exceptional value on a global scale. The right of individual application, in particular, became universally binding only in 1998; the eventual acceptance of this
principle by all states was a gradual and remarkable achievement. And the aim
of the current reforms – in the first place, those under Protocol No. 14 but also,
in the longer term, those recommended by the Wise Persons – is precisely to preserve the richness of the system while ensuring that it does not collapse under
the weight of the thousands of applications lodged each year. Or, in other words,
the remarkable judicial mechanism for protecting everyone’s rights under the
Convention is jeopardised only by the risk of self-destruction, just as, in history,
runaway inflation has ruined certain monetary systems. It goes without saying
that everything must be done to prevent the system from collapsing or self-destructing. I am convinced that this is possible, and would point out that many of
these applications have, it must be said, no prospect of success, for various
reasons inherent in the limitations of the Convention itself; hence the sensible
idea that a filtering mechanism is needed. Let us now look, if you will allow me,
at the various proposals put forward by the Wise Persons.
The Court’s stance to each proposal of the report
The proposals can be divided into three categories: those which the Court
fully endorses; those which the Court endorses while considering that they
require a more thorough examination both within the Court and within the
States Parties; and lastly, those in respect of which the Court is unfavourable or
at least has reservations.
The proposals which the Court accepts without any difficulty:
The Wise Persons were keen to simplify the procedure for amending the Convention. Drawing their inspiration from a method used within the European
Communities – and you will allow me to imagine that President Rodríguez Iglesias, with his intimate knowledge of the Community system, is not unfamiliar
with this idea – they proposed that such amendments should be possible by
means of a unanimous decision of the Committee of Ministers.
At present, for the slightest amendment to the Convention it is necessary to
wait until all the States Parties have signed and ratified the amended text. The situation in which we now find ourselves with regard to Protocol No. 14 shows how
excessively cumbersome the reform process is.
in the light of the Wise Persons’ Report
39
Comments on the Wise Persons’ Report
Making it more flexible is therefore a necessity because things are constantly
changing and the machinery has to adapt.
In proposing such a method, the Wise Persons advisedly suggested a number
of safeguards: firstly, all amendments would at least have to be submitted to the
Court for approval; secondly, the provisions that could be amended under the
simplified procedure would be exhaustively listed, as the report indicates, and
would obviously not include the most fundamental provisions of the Convention, which would continue to be governed by the existing procedure.
The Wise Persons referred to this set of rules, which could be amended with
greater flexibility, as the “Statute of the Court”, and this is a reform which the
experts of the Steering Committee on Human Rights (CDDH) could begin
looking into straight away. The proposal for a Statute of the Court is realistic and
practical; it is a good illustration of the fact that the history of the Convention is
one of continuous adaptation to changing circumstances. Future generations of
diplomats will thank the Wise Persons for making such essential changes easier
to effect.
The Court also unreservedly endorses the part of the report on enhancing the
authority of its case-law. The Court already makes a considerable effort to translate and publish the most important judgments. It is essential, however, that this
work should be furthered within the member states and that judgments should
be distributed and translated, including into languages other than English or
French. This is the responsibility of the states concerned and is a prerequisite for
ensuring that the subsidiarity principle becomes a reality; if the domestic courts
are to be able to apply our case-law, it needs to be accessible to them. The authority of the Court’s judgments, however, as the report also noted, does not derive
solely from their distribution and hence their linguistic accessibility; it entails engaging in dialogue, in particular with the national authorities and courts and
with civil society.
Lastly, the Court has noted with great satisfaction the Wise Persons’ proposals concerning the institutional dimension of the control mechanism. The Wise
Persons clearly wished to strengthen the status of judges. The vulnerable position in which a number of my colleagues have now been placed as a result of the
non-ratification of Protocol No. 14 shows the extent to which their situation
must be improved. In particular, the complete lack of social security and a
pension scheme is unique in this field and is unworthy of an institution – the
Council of Europe – within which the European Social Charter was drawn up.
The fate in store for my colleagues is profoundly unjust and, above all, strikes at
the very independence of the Court; above and beyond individual circumstances, this is unacceptable. Our Court cannot perform its unique role if it is
subject to pressure, or even manipulation, and I say this in all earnestness.
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Future developments of the European Court of Human Rights
Mr Jean-Paul Costa
I would add that the Court fully endorses the Wise Persons’ proposal to give
it greater operational autonomy as regards both the presentation and management of its budget and the appointment, deployment and promotion of its staff.
This does not in any way mean a separate budget from the Council of Europe,
since autonomy does not mean independence. As regards budgetary matters, we
should not delude ourselves: the implementation of a number of the proposals
in the Wise Persons’ Report will have financial implications. I am duty bound to
draw the member states’ attention very clearly to this point. It should not be
overlooked that the Wise Persons have called on them to make the necessary resources available to the Court. An effective reform cannot take place without any
change in the budget, and this is particularly so if – although I refuse to countenance the thought – Protocol No. 14 should prove abortive.
With regard to pilot judgments, the Court is satisfied that the Wise Persons’
Report encourages it to make use of this procedure, which is intended to identify
structural problems in a particular country. We shall continue to look into the
possibilities offered by this procedure and the context in which it should be implemented.
I would now like to go on to the second category of proposals set out in the
report, those which the Court does not disagree with in principle but which it
considers require thorough examination both by the Court itself and by the
States Parties.
First of all, and this is one of the key proposals in the report, there is the idea
of setting up a new judicial filtering mechanism. This proposal, which is consistent with the Court’s view and has been advocated by us since 2003, requires extremely careful consideration as to how to put it into practice. The Court is in the
best position, on the basis of its experience, to indicate how such a mechanism
could be put in place.
Secondly, there is the extremely interesting idea of setting up a mechanism to
improve domestic remedies. This is an area for states to look at, and our Court,
being very attached to the subsidiarity principle and to dispute prevention, can
only welcome the prospect of a large number of minor cases, concerning in particular (but not exclusively) the length of proceedings, being settled at national
level. In this connection, the drafters of the Convention would surely be surprised to see that recourse to Strasbourg has often become an opportunity for individuals and lawyers to obtain financial compensation, sometimes without any
close link to the inner or central core of human rights. Some observers even scoff
that the Strasbourg judges have become accountants.
In any event, although the proposal in the report deserves to be examined in
greater detail, the Court is prepared to take part in discussions on the subject.
The proposals on friendly settlements and mediation are also among those
which the Court endorses, subject to a thorough examination by itself or by the
in the light of the Wise Persons’ Report
41
Comments on the Wise Persons’ Report
States Parties. This is also the case as regards the Council of Europe’s Commissioner for Human Rights, and in this connection we will have the great benefit
tomorrow of hearing the words of the Commissioner himself, Mr Thomas Hammarberg.
It is sometimes said that the chief merit of a report is the criticism directed at
it, and I have to say that on some of the Wise Persons’ proposals, the Court’s position is somewhat reserved, not to say, as regards certain points, unfavourable.
One example is that of advisory opinions. We have a clear feeling that in our
Court’s current situation, assigning it this additional task would not be realistic.
Furthermore, such a mechanism is liable to lead to legal difficulties at a later
stage, both in terms of exhaustion of domestic remedies and from the point of
view of the Court’s authority. However, the idea, from an intellectual standpoint,
is a very attractive one in my opinion and I am sensitive to the explanations President Rodríguez Iglesias has just given us. Is it not part of the essential dialogue
between judges, at national and European level? Maybe one day it will be possible
to realise this proposal, either through an amendment of the existing Article 47
of the Convention, by which the Committee of Ministers may request the Court
to give an opinion, or through a more innovative method, or through a combination of the two.
Referring decisions on just satisfaction to the state concerned is likewise a
proposal which, on the face of it, is far from gaining the Court’s approval. We are
concerned that this measure, which at first sight might seem capable of lightening the Court’s workload, would ultimately result in applicants being disappointed and coming back to the Court to complain about the insufficient
amounts awarded at domestic level. Just satisfaction would risk leading to unjustness and dissatisfaction, but this remains to be seen.
Lastly, the Court does not consider that the proposal to reduce the number of
judges is advisable.
The Court’s legitimacy derives precisely from the fact that all legal systems are
represented within it. The judgments of a court that did not include a national
judge among its members would quickly be contested for lack of knowledge of
the domestic system. Moreover, the presence of judges from certain countries
only would create inequalities between states, whereas international law is
founded on the sovereign equality of states.
San Marino is a particularly appropriate location for me to reiterate what I
said on 21 February when receiving the Captains Regent: “Your state may be one
of the smallest in Europe in terms of size, but before the European Court of
Human Rights all states are naturally equal, in accordance with a wellestablished rule of international law.” It is to be feared that a reduction in the
number of judges might seriously undermine this principle of equality. I also
have difficulty imagining that, when the “one judge per state” principle has
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Future developments of the European Court of Human Rights
Mr Jean-Paul Costa
applied since 1950, some countries would now accept no longer having a judge
elected in respect of their state.
This concludes my broad outline of the initial reactions which the Wise Persons’ Report has elicited on the Court’s part; I have tried to present them as faithfully as possible. However, the Court’s opinion will of course also take into
account today’s and tomorrow’s discussions.
Ladies and gentlemen,
This San Marino colloquy is of historic importance. The European Court of
Human Rights, whose first judgment was delivered in late 1960, has in half a
century seen a remarkable development of its authority and influence, which are
unique in the world, but also a number of crises, mainly growth crises. It has
overcome them all, just as, thanks to the trust placed in it by states and citizens,
it has been victorious in resisting the attacks which have sometimes been directed at it, and which I consider to be unfair, in particular the serious and unfounded accusation that it is politically motivated.
The growth crisis has perhaps never been so severe; and the criticism levelled
at our Court has perhaps never been so strong, even though, I repeat, I consider
it unjustified.
The Wise Persons’ Report, which I again welcome, can and must provide the
system with the means to move into a new phase. There are three conditions in
my opinion: the 46th and final ratification of Protocol No. 14 must take place
without delay; the most useful and easily workable proposals of the Group of
Wise Persons must be swiftly examined by the States Parties and introduced; and
we must start thinking immediately, beyond the Protocol and the report, about
the long term. If we wish to maintain and even develop the protection of rights
and freedoms in Europe, we and you must all transform into futurologists. The
European Court of Human Rights has already proved itself to be a great judicial
body. Only fresh impetus and a bold vision of Europe and justice will make the
twenty-first century Court the great institution it deserves to become, serving
human rights and thus human beings.
Thank you all for your attention. Ž
in the light of the Wise Persons’ Report
43
Comments on
the Wise Persons’ Report
from the perspective
of the Parliamentary Assembly
of the Council of Europe
Ms Marie-Louise Bemelmans-Videc
Member of the Parliamentary Assembly
I
am honoured to be invited here, to present my views in a personal capacity,
without prejudice to the position the Parliamentary Assembly or its Committee
on Legal Affairs and Human Rights might adopt on the proposals of the Wise
Persons.
The diagnosis
I cannot but agree with the diagnosis presented by the Wise Persons in paragraph 37 of their report: “that there is a fundamental conflict between the size of
the population who have access to the Court with the right to lodge an individual
application and the Court’s responsibility as the final arbiter in human rights
matters for so many different states.”
Maybe the term “diagnosis”, which makes us think of a patient, a sick person,
is not quite fitting: whilst the Court is in a certain way becoming a victim of its
own success, we must not lose sight of the fact that we are talking about a success
story. The very fact that so many of our citizens find it worth their while, despite
all the shortcomings of the system, to make use of the Court to ensure the respect
of their rights under the Convention, is a resounding success. It is simply our responsibility now to provide the right conditions to enable the Court to continue
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Future developments of the European Court of Human Rights
Ms Marie-Louise Bemelmans-Videc
this success story. Clearly, the Wise Persons have made an important contribution to this endeavour.
The Court’s double role
I agree with the basic analysis of the Group of Wise Persons that the Court has
a double role – a “constitutional” mission of “laying down common principles relating to human rights and to determine the minimum level of protection which
states must observe”, and a role of individual supervision and adjudication.
In my view, the Court’s two functions are inextricably joined together, very
much like the functions of those of many national constitutional courts which,
in addition to their jurisdiction over disputes between organs of the state on the
interpretation of constitutional provisions determining their powers, also have
the function of deciding on “constitutional complaints” of individual citizens,
who claim that their fundamental rights as guaranteed in the constitution have
been violated by decisions of the executive, or even by ordinary civil or administrative courts that have rejected their claims. These constitutional courts have
likewise been confronted with the need to develop strategies to avoid becoming
a “fourth instance” and to deal effectively with huge numbers of obviously inadmissible or substantively unjustified applications – but to my knowledge, none
of them have abandoned the adjudication of constitutional complaints of individual citizens to “lesser” judges. For the highest judges of the land to continue
facing the flood of ordinary citizens’ grievances is seen by them not so much as
a burden, but as a useful and necessary link with reality, a direct link with the individual.
I am convinced that this link with the grievances of a large number of ordinary
individuals from all forty-six member states must be preserved. The Court is
unique because of its direct “link” to the individual, who under the Convention
is a fully fledged party before this international judicial body, reminding governments of their promises and pledges. This direct link also creates the dynamics
in the Court’s judgments where social change is reflected in the cases brought
before the Court.
The Court has a pioneering role in trying to find a consensus on the values incorporated in the Convention and its protocols, which have often, with the
passing of time, acquired a new meaning. The Court is a “living instrument”
which must keep pace with social change and translate new orientations into
specific, binding decisions.
Which brings me to a role that I find crucial in the Court’s functioning and
which is explicitly recognised in the Wise Persons’ Report: the role the Court
plays in the cultural dialogue, that is the dialogue on values, which represent “the
common good”, the bonum commune of a conglomerate of nations. As Mr Luzius
in the light of the Wise Persons’ Report
45
Comments on the Wise Persons’ Report
Wildhaber, Mr Jean-Paul Costa’s distinguished predecessor as President of the
Court, has explained in an interview with a Dutch journalist: “Fundamental
freedoms and human rights are guaranteed in very wide formulas which are utopian, programmatic and ideal, and which require someone to give them a concrete shape. Judges have the ‘final say’ in this.”
Yes, the Court has the “final say”, but this “say” will be rooted in a (growing)
consensus, nourished and legitimised through dialogue.
The need for a dialogue among cultures on the rights of all people and of the
human being in its fullness seems to have never been more urgent. This dialogue
can only be successful if countries are not only involved but also feel involved,
and their cultures have an attitude that allows for self-criticism.
The same direct link to the citizen is also a basic feature of the Parliamentary
Assembly. In the words of the Belgian Prime Minister Guy Verhofstadt: “The
Council of Europe is particularly well equipped to listen to the voices of citizens.
Members who sit in the Assembly have a double mandate to represent citizens
at their national parliaments as well as the Council of Europe. They are therefore
in an ideal position to represent the views of European citizens.” Intercultural
and indeed also interreligious dialogue is one of the priorities set by the President
of the Parliamentary Assembly, René van der Linden, in the following terms:
“The members of our Assembly directly represent 800 million citizens, 800
million people with different cultures, different nationalities, a wide range of political views and religious beliefs, but who are united by common values. Values
that can strengthen social cohesion in our societies and further peace and stability on our continent.”
For me as a member of the Parliamentary Assembly, four comments on the
Wise Persons’ Report flow directly from this analysis of the Court as a privileged
locus of dialogue:
` Firstly, I welcome the different proposals aimed at improving dialogue between the European Court of Human Rights and the national courts, e.g.,
placing more emphasis on human rights training for national judges, maintaining and expanding working relations between the Strasbourg Court and
the highest national courts. Here, as we have heard from Ms Ingrid SiessScherz this morning, the full implementation of the 2004 “reform package”
accompanying Protocol No. 14, at the national level, will make a significant
contribution to alleviating the Court’s case-law. As a national parliamentarian, I am aware of my and my colleagues’ responsibilities in this respect.
In this connection, it is indeed worth reflecting upon the idea of creating the
possibility for national courts to request the European Court of Human
Rights to give advisory opinions on questions of the interpretation of the Convention. While I agree with the Wise Persons that requests for such opinions
should be optional, and that the Court should have the discretion to refuse to
46
Future developments of the European Court of Human Rights
Ms Marie-Louise Bemelmans-Videc
answer a request for an opinion, the counter-argument concerning this idea
still merits further reflection. For, as the Wise Persons themselves recognised,
the proliferation of requests for opinions may have adverse effects on the
Court’s workload and resources.
` Secondly, I welcome the Wise Person’s support for the improvement of dialogue by the extension of the role of the Council of Europe’s Commissioner of
Human Rights and the network of national ombudspersons and national
human rights institutions, referred to by Mr Thomas Hammarberg as
“National Human Rights Structures”. These alternative or complementary
means of resolving disputes could indeed help reduce the Court’s workload by
addressing systemic problems at national level before they trigger a large
number of applications to the Court. I very much look forward to tomorrow’s
contribution of Mr Thomas Hammarberg on this subject.
` Thirdly, I welcome very much the Wise Persons’ support for the right of individual application and its rejection of various proposals for the establishment
of filter mechanisms at the national level, or of a US-style procedure of “certiorari”. The Assembly has expressed its attachment to the right of individual
application so often and so clearly that I cannot afford to go into any more
detail here without creating the impression of weakening this commitment in
any way.
` And fourthly, and for the same reasons, I feel a bit uncomfortable with the
Wise Persons’ statement (para. 35) that the Court should be “relieved” of
manifestly inadmissible applications or repetitive cases which “distract” it
from its essential role. Adjudicating individuals’ applications complaining
about violations of their Convention rights by States Parties is the Court’s essential role, which creates the unique link between the Court and individuals
whose importance I tried to explain before.
I therefore think that the proposal of the creation of a “judicial committee”
composed of somewhat “lesser” judges – although the Wise Persons did not say
so, the proposed modalities do imply a clear hierarchy – to deal with clearly inadmissible or repetitive cases needs further serious reflection. Can we still justify
the unusually high number of judges, by comparison with other international
courts, if they are to deal exclusively with the Court’s “constitutional” function?
Would the authority of decisions in “repetitive” cases not suffer from being
decided by the lower tier of a two-tier system of judges? We are, after all, talking
about cases in which member states are found to violate Convention rights of
large numbers of individuals, in such vital – often in the literal sense of the term
– cases as inhuman conditions of detention, overtly long or otherwise unjustified
pre-trial detention (often also in inhuman and degrading conditions), etc. Repetitive cases, rather than being a “distraction”, may often be indicative of a systemic
problem within a state that needs to be addressed urgently.
in the light of the Wise Persons’ Report
47
Comments on the Wise Persons’ Report
No doubt it is necessary, and quite feasible, to deal with such cases in an efficient manner – very much in the interest of the victims of violations themselves.
The rule of “justice delayed is justice denied” applies also at the European level.
The Strasbourg Court cannot, without losing its credibility, take five or six years
to decide that domestic legal proceedings lasting the same amount of time are
too long and in violation of Article 6 of the Convention!
While I tend to agree that the “pilot judgment procedure” is a significant development, I should like to express a note of caution. The definition and criteria for
this procedure have yet to be defined, and the weakness of its legal basis has already
been pointed out by Judge Zagrebelsky. In two partly dissenting opinions,17 Judge
Zagrebelsky recalled that this procedure, although approved by the Committee of
Ministers, is not yet reflected in the text of the Convention. He considers that the
Grand Chamber is the proper forum for identifying the existence of systemic problems and drawing the necessary consequences therefrom.18 Please also allow me
to refer, in this connection, to the report on the “Implementation of judgments of
the European Court of Human Rights” of my Dutch parliamentary colleague, Mr
Jurgens, in which he pointed out that this procedure deals with complex systemic
problems on the basis of a single case without necessarily revealing possible other
related aspects in similar but not identical cases. Hence the danger that “pilot judgments” may not allow for a comprehensive assessment of a systemic problem. And
– in the meantime – all other related cases may be “frozen”, further delaying their
determination by the Strasbourg Court.19
Pilot judgments would in most instances concern principally, but not necessarily, the same member state. This leads us to the question of whether Grand
Chamber judgments should have some form of “precedent value”, not to say an
erga omnes effect. This issue concerns a complex interplay between Articles 46
§§2, 1, 13 and 19 of the Convention. The Group of Wise Persons refrained from
making any proposals concerning such “judgments of principle” (see paragraphs
66 to 69 of the Report). Yet this aspect of the Court’s authoritative interpretation
17. In Hutten-Czapska v. Poland (judgment of 19 June 2006), he stated on the one hand that
the arguments set out by the Committee of Ministers in Resolution Res (2004) 3 and Recommendation Rec (2004) 6 of 12 May 2004, which are addressed to governments, “are undoubtedly of much importance and must be taken into account by the European Court of Human
Rights with a view to ensuring that the reasons given in its judgments are as clear as possible”.
On the other hand, he disputed that the “fact that the proposals to which the European Court
of Human Rights refers in paragraph 233 of the judgment were not included in the recent Protocol No. 14 amending the European Convention on Human Rights” cannot be overlooked.
18. Partly dissenting opinion of judge Zagrebelsky in the case of Lukenda v. Slovenia (judgment of 6 October 2005).
19. Parliamentary Assembly doc. 11020, of 18 September 2006, “Implementation of Judgments of the European Court of Human Rights”. See also, on this subject, Assembly Resolution
1516 (2006) and Recommendation 1764 (2006).
48
Future developments of the European Court of Human Rights
Ms Marie-Louise Bemelmans-Videc
of the Convention and its protocols deserves deeper reflection, especially when
one looks at such “judgments of principle” as the Marckx case20 and the Court’s
obiter dictum in the case of Ireland v. the United Kingdom.21
Also, before rushing to another stage of the process of the Court’s reform,
after Protocols 11 and 14, let us allow the Court to fully implement reforms that
have already been decided upon.
Protocol No. 14 – whose entry into force is now contingent on ratification by
Russia – and with respect to which our Committee chair Dick Marty and his colleague of the Monitoring Committee, Eduard Lintner, will in early April be travelling to Moscow to discuss this subject with their colleagues of the Russian State
Duma – holds a number of possibilities to streamline and simplify the Court’s
procedures. The single judge empowered to dispose of evidently inadmissible
cases as well as the committee of three judges for handling manifestly wellfounded cases have the potential of ensuring speedier resolution of such cases
and increasing the Court’s capacity. Before acting upon any further proposals
that may alter the very essence of the unified Court, the effects of these reforms,
and of the additional admissibility criterion laid down in Protocol No. 14, ought
to be monitored for some time. They should be assessed in a transparent way, associating the Assembly as well as non-governmental institutions representing
the interests of all stakeholders, including applicants and potential applicants.
The Court’s role and the principle of subsidiarity
As you know, the political party I belong to strongly believes in the principle
of subsidiarity – allowing the lower level of society, closer to the individual, to
deal with problems before the next higher level takes over – the family before the
local community, the local community before the region, the region before the
country, the country before Europe. This principle should also apply to the resolution of legal issues. But it must be tempered by the need to protect the equality
of treatment and the application of uniform standards – or at least common
20. Judgment of 13 June 1979. Interestingly enough, on 18 January 1980 the Dutch Supreme
Court (Hoge Raad), basing itself on the Strasbourg Court’s judgment, decided to follow the
Strasbourg Court’s reasoning concerning the negative legal consequences of maintaining the
legal, discriminatory, distinction between “legitimate” and natural children.
21. “[T]he Court’s judgments in fact serve not only to decide those cases brought before the
Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the states of the engagements undertaken
by them as Contracting Parties (Article 19)” (judgment of 18 January 1978, §154). See also, in
this connection, e.g., Section 2 (1) of the United Kingdom Human Rights Act, 1998, which
obliges courts to “take into account” the Strasbourg Court’s case-law, and the German Federal
Constitutional Court’s judgment, of 14 October 2004, in the Görgülü case, http://
www.bundesverfassungsgericht.de/.
in the light of the Wise Persons’ Report
49
Comments on the Wise Persons’ Report
minimum standards – of human rights protection for all 800 million individuals
served by the European Court.
I therefore agree with the Wise Persons that improving domestic remedies for
redressing violations of the Convention is essential, especially as concerns the
length of proceedings. In this respect, our Committee has recently broken new
ground by including, in the list of commitments to be made by Montenegro in
joining the Council of Europe, the establishment of a new remedy for individuals
who consider themselves victims of excessively lengthy court proceedings.
But I am not so sure whether we should take subsidiarity so far as to delegate to
national courts the determination of “just satisfaction” in the case of a Convention
violation determined by the Strasbourg Court. This threatens to undermine the
equal treatment of victims of human rights violations, and places yet another potentially time-consuming procedure in the path of applicants before they can finally
obtain satisfaction. From the point of view of the applicant, the procedure is already
too long and cumbersome, and as a parliamentarian, I have certain reservations to
the idea of adding another layer of procedure (not to mention possible “appeals” to
Strasbourg if the amount of “just satisfaction” is considered insufficient).
The Assembly’s role
As I made clear in the beginning, I have made these brief comments in my personal capacity. In due course, I will present a more elaborate version of my views
to the Committee on Legal Affairs and Human Rights, which will adopt a position that will also need to be discussed by the Assembly as a whole. In due course,
the Committee of Ministers will be informed of the position of the Assembly,
which takes the Court and its future development much too seriously to come
up with quick answers or proposals that have not been thoroughly considered.
The Assembly has consistently shown its support for the Court, as demonstrated by the recent reports of my compatriot Erik Jurgens on the Implementation of the Court’s judgments and of my EPP colleague Christos Pourgourides on
member Statuesquely to co-operate with the Court.22 As our Committee
stressed in adopting Mr Pourgourides’ report, this duty includes protecting applicants and their lawyers from undue pressure, and the need to fully co-operate
with the Court in establishing the facts of the cases before it.
Please permit me to draw your attention to the fact that Mr Pourgourides’
report touches upon Article 38 of the Convention. In this connection, it would
be interesting to ponder over how the Court is able to reconcile the need to
clearly establish the facts where they are disputed and at the same time limit the
need for in loco investigations? The Court’s fact-finding procedures consume an
22.
50
See Parliamentary Assembly Doc. 11183 of 9 February 2007
Future developments of the European Court of Human Rights
Ms Marie-Louise Bemelmans-Videc
enormous amount of time and energy of the judges and registry officials. That
said, the Court must nevertheless continue to address human rights violations in
“trouble spots” in a meaningful way, even – and I would even say: especially! –
when underlying facts are disputed.
You can count on the Assembly, and in particular its Legal Affairs and Human
Rights Committee, to help maintain the authority of the Court. The reports by
Messrs Jurgens and Pourgourides bear witness to this. But this authority of the
Strasbourg Court also depends on the irreproachable moral and professional
qualities of the judges elected by the Assembly, on the advice of the Sub-Committee that I have the honour of chairing.
This prompts me to devote my final comments to this issue. I am well-placed
to assure you, first of all, that the Assembly already applies to the best of its ability
an “election procedure” summed-up so ably by the Wise Persons, including the
need for states to propose candidates of the highest professional and moral
standing, with appropriate linguistic abilities.
The Wise Persons refer to the selection process at the European level, recommending the involvement of “prominent personalities” to advise the Assembly
on the professional qualities of candidates, a proposal which merits consideration. In my own experience, it is especially important to ensure the best possible
and above all transparent selection procedures at national level.
A report on this subject is presently under preparation. In this connection, it
will be interesting to find out how many states already now operate open and
transparent procedures like those in the United Kingdom and (if I may) in the
Netherlands. These procedures involve a public announcement of the vacancy
followed by a transparent pre-selection procedure by a panel of recognised experts, making it very hard for politicians to deviate from objective criteria in
order to place a less qualified “political friend” on the list. Such a transparent and
“objective” procedure at national level supports the work in finalising the selection in my Sub-Committee and in the Assembly.
Please permit me a last, but important remark. At its forthcoming partsession in April the Assembly will devote a day to the subject of the “situation of
human rights and democracy in Europe” which will no doubt underline the significant work of all the Organisation’s core human rights institutions and monitoring bodies. Here, one proposal that is likely to emerge from discussions necessitates, in my view, renewed priority treatment, namely accession of the
European Union/European Community to the European Convention of Human
Rights. The implementation of any proposals to safeguard the remarkable acquis
of the Strasbourg Court must be seen in a wider context. Hence the need, first
and foremost, to ensure that there are no unnecessary competing and potentially
conflicting systems of human rights protection in Europe.
I thank you for your attention. Ž
in the light of the Wise Persons’ Report
51
The new judicial filtering
mechanism: introductory
comments
Mr Martin Eaton
former Chairperson of the Steering Committee for Human Rights
(CDDH)
Opening remarks
I had the honour to chair the Reflection Group (GDR) 2001-2002 and the
Steering Committee for Human Rights CDDH 2003-2004, and was fully involved throughout the reform process of 2000-2004 which negotiated Protocol
No. 14 and the associated Recommendations and Declaration.
It is a privilege to be asked to comment on the work of the Wise Persons,
which aims to look beyond the Protocol to further reforms which may be needed.
There is great merit in this kind of “thinking outside the box” by an eminent
group of relative outsiders. It means ideas can be floated and advocated which
either do not occur to those of us insiders who have spent a long time living with
the problems of overload and backlog at the Court, or which get stifled at too
early a stage. In the latter category I think in particular of the idea of a second
level of rules – a statute of the court containing provisions which could be
amended by a simpler and quicker process, a good idea which to my mind was
discarded too quickly in the 2000-2004 process.
Protocol No. 14 has of course not yet entered into force because the ratification of one state is still outstanding. I very much hope that the remaining issues
surrounding that ratification will soon be resolved so that the protocol, which is
the result of so much thought and effort, can enter into force. This is not just my
view – as the Chair of CDDH when it was negotiated and adopted I suppose I
might be expected to have some fond paternal feelings towards the protocol. We
52
Future developments of the European Court of Human Rights
Mr Martin Eaton
have heard this morning numerous appeals for that entry into force, none more
eloquent and forceful than that of the President of the Court, Mr Costa.
In this current situation, before its entry into force, however, there is something a little unreal in looking at more far-reaching reforms, without the benefit
of any practical experience of the difference the protocol will make. The Report
before us has to rely on predictions of that effect, which may or may not be accurate. That is not to say that anybody connected with the negotiation thought
then or thinks now that Protocol No. 14 was the last word or would solve all the
problems. But I do think it fair to say that all these thoughtful and valuable proposals, and our discussions of them, will need to be revisited in the light of the
experience of the protocol before any decisions can properly be taken on the way
forward. We have to proceed step by step and build on what has gone before, just
as Protocol No. 14 itself built on Protocol No. 11.
Proposals for new filtering mechanisms during the
negotiations for Protocol No. 14
Several proposals for new filtering mechanisms were made during the 20002004 reform process. The first was by the Evaluation Group in its report of 2001.
It proposed a separate division within the Court, composed not of elected judges
but of “appropriately appointed independent and impartial persons invested
with judicial status”. CDDH rejected this for two main reasons:
` first, admissibility decisions should be by elected judges
` secondly, there should not be differing categories of judges within the same
court.
Later, the Court argued for a reinforcement of the filtering mechanism, preferably through the creation of a separate filtering body. The CDDH responded
with the proposal for single judges assisted by rapporteurs. The Court acknowledged this as an improvement but continued to look for a separate filtering
mechanism composed of new “judicial actors”, with limited decision-making
power not extending beyond clearly inadmissible cases and uncontested repetitive cases. This lower level of judges would take over the largely routine mass of
judicial work flooding into the Court. Again the CDDH was not persuaded, considering, among other reasons, that this would represent a return to a two-tier
system, that it could lead to a large filtering body and a smaller Court, that the
Court’s overload problems might simply be transferred to the filtering mechanism, and that the costs would be too high.
in the light of the Wise Persons’ Report
53
The new judicial filtering mechanism: introductory comments
The Wise Persons’ proposals
The proposal, in very brief summary, is for a Judicial Committee, a judicial filtering body which would be attached to, but separate from, the Court, in order
to guarantee, on the one hand, that individual applications result in a judicial decision and, on the other that the Court can be relieved of a large number of cases
and focus on its essential role. The members would be elected judges, fewer in
number than the member states and subject to a system of rotation. They would
have the same qualification requirements as the judges of the Court, but their
jurisdiction would be limited to hearing:
` all applications raising admissibility issues;
` all cases which could be declared manifestly well-founded or manifestly illfounded on the basis of well-established case-law of the Court (paragraph 55
of the Report).
This proposal, which is developed in a good deal more detail in paragraphs
51-65, is obviously far more sophisticated than either of those which were made
and rejected during the reform process of 2000-2004. In particular, the members
are fully judicial and subject to the same qualification requirements and election
process as the judges of the Court. So the first, and most serious, objection raised
against the Evaluation Group proposal, that admissibility decisions would be
taken by non-elected judges, does not apply. There remain, however, a number
of questions:
a. Two-tier system. A main aim and achievement of the Protocol No. 11
reforms was the unified, fully judicial system. This proposal does not restore
the old Commission – the new judicial committee has on the one hand judicial power, on the other far narrower jurisdiction – but it is a form of two-tier
system. Does the increase in judicial capacity and the freeing of the Court for
its more constitutional role justify this reversion? And is it serious that the
cases dealt with by the Judicial Committee will escape the unified judicial
control of the Court, with a risk of divergent practice? Is the device of making
the president of the Committee a judge of the Court a sufficient link to guarantee consistency?
b. Two categories of judge in one Court. Although the judges of the Judicial
committee and of the Court would have the same qualification and election
requirements, their jurisdiction would differ sharply. Many members of the
CDDH always objected to this on principle and the same objections may be
expected to be raised again. But how justified is that objection? It may be unusual, even unprecedented, but is it not open to the Council to structure the
Court in this way if it is more efficient?
c. Is the proposed power of review wise? At paragraph 63 the Wise Persons,
quite rightly in my view, recommend against a right of appeal against the de54
Future developments of the European Court of Human Rights
Mr Martin Eaton
cisions of the Committee. But at paragraph 64 they recommend a special
power of review for the Court, initiated by the President of the Court or the
Chair of the Committee. Does this not go against the principle of finality of
decisions on admissibility and add to the workload by creating a two-stage
process where there is now only one? It is worth remembering throughout
that the key aim is to reduce the work load and backlog, not increase it.
d. Does the expansion of judicial capacity aim at the right target? Most of the
work on inadmissible and repetitive cases at present is done by the Registry,
not by Judges. Evidence given to the CDDH and GDR during the negotiations
suggested that the current three-Judge Committees deal with very high
numbers of inadmissible cases in a session, but only because they do not
dispute the result recommended by the Registry after careful work. It is the
Registry that carries the main burden and that is where the overload primarily
occurs. The proposal makes clear that the Registry’s role would continue (paragraphs 58 and 59). The CDDH accepted that the judges too are overloaded,
which led to the proposal for single judges sitting with rapporteurs, but the
greater burden falls on the Registry. If that is right, is it not a better (and
cheaper) strategy to reinforce the Registry rather than increase the numbers
of judges?
e. Does the proposal simply shift the problem rather than solve it? The proposal would certainly free up the existing Court judges to concentrate on key
standard-setting judgments on the merits and thus help to preserve the
quality of those judgments – which has to be a good thing. But, in so doing,
would it not simply transfer the overload problem of the mass of unmeritorious and repetitive cases to the new Committee? It seems likely that such a
Committee would itself be asking for expansion in staff and judge numbers
after a year or two.
f. Fewer judges than member states will be controversial. Every time proposals of this type were made in the 2000-2004 reform process there were objections from states. Even when, exceptionally, the proposal to amend Article 20
to insert a power for the Committee of Ministers to appoint extra judges on
request of the Court was passed by a majority of CDDH members, it failed in
the Committee of Ministers because of opposition on this ground, that it is
wrong for only some states to have extra judges and not others (it was also
opposed by the Parliamentary Assembly on this ground among others). The
proposal for rotation of the extra places may help. Such a system works for the
appointment of Advocates-General in the European Court of Justice. But arguably judges are different, and so far that has always been the reaction of at
least some states. Even more controversial is the idea, recommended in
paragraph 121, that in future the main Court too could have fewer judges than
the number of member states. It seems odd in the first place to say that at the
in the light of the Wise Persons’ Report
55
The new judicial filtering mechanism: introductory comments
beginning of the Report that more judges are needed to cope with the workload only to float at the end the idea of doing away with some of the existing
judges. Secondly, a key reason why there needs to be a judge from each state
is not because he or she in any sense represents the state or its government,
but so that they can inform their colleagues about the substantive and procedural law of their country, e.g. on the availability of domestic remedies. This
is a vital role, not lightly to be cast aside. It is not an adequate answer to
provide for an ad hoc judge for the defendant state where no national of that
state is on the Court. There needs to be continuity and experience both of
national law and of the Court’s case-law and practice available to it from each
member state on an ongoing basis. And there are so many applications from
some states that any ad hoc judges for them would have to be virtually permanent, which would defeat the object. With respect, the suggested parallels of
the International Court of Justice and the Inter-American Court of Human
Rights break down, because neither accepts applications from individuals,
but only from states and international organisations in the one case, and states
and the Inter-American Commission of Human Rights in the other, so the
caseload of these courts is far more limited. No wonder they can manage with
fewer judges.
g. Will the Judicial Committee be an attractive job? The proposal to require
the same high qualifications of candidates for this job as for the Court raises
the question whether persons qualified for appointment to high judicial office
will be interested in a post which denies them virtually any serious and challenging judicial decision-making. By definition its functions will be limited,
on the one hand, to formal admissibility decisions, which are overwhelmingly
routine; and on the other, to manifestly ill-founded cases, cases of the new admissibility criterion introduced by Protocol No. 14 and cases on the merits
but only where the case-law has already been well-established by the Court
itself. The Court of First Instance of the European Union is in no way a parallel, having as it does an interesting and very important jurisdiction on the
merits of certain classes of case. Nor is the old Commission, which also
decided important issues on the admissibility and merits and whose decisions
on admissibility and opinions on the merits often served to establish and
develop the case-law.
h. Cost.Judges are expensive, to pay and to accommodate. Inevitably they would
want more registry support than is currently available so registry costs would
also rise. The question once again arises: would it not be more cost-effective
to expand the Registry instead so that the existing judges can manage the
demands of admissibility and repetitive cases as well as the contentious cases?
56
Future developments of the European Court of Human Rights
Mr Martin Eaton
Conclusions
The new proposals for a separate filtering mechanism are, as one would
expect from the calibre of those putting them forward, well constructed and deal
with many of the objections levelled at previous suggestions of similar intent. But
serious questions still arise, which need further consideration, and, as I said at
the outset, I do think they will in any event need to be reconsidered in the light
of the actual experience of the effect of the changes introduced by Protocol
No. 14.
Postscript
My prepared text ended there, but after hearing the Secretary General this
morning I want to add that I very much agree with him that it would be a mistake
to tackle the problems of overload at the Court by pouring money into the Court
at the expense of the other programmes of the Council of Europe. Many of these
also contribute directly or indirectly to reducing abuses of human rights and
hence the inflow of cases to which they give rise. For example, after leaving the
CDDH I have been working on Education for Democratic Citizenship and
Human Rights Education, a less glamorous and certainly less well funded sector
of the Council's work but, in my view, absolutely vital for developing the sorts of
skills that should help to reduce the risks of human rights abuses in the future.
We should make sure programmes continue and expand as well as providing the
Court with extra resources. Ž
in the light of the Wise Persons’ Report
57
Relations between the Court
and States Parties
to the Convention
Ms Wilhelmina Thomassen
Judge at the Supreme Court of the Netherlands
F
irst I wish to thank the organisers for inviting me to take part in this discussion
on the Wise Persons’ Report.
I have been asked to comment on the parts of the report concerning relations
between the Court and the states parties to the Convention and I have identified
four topics: the judicial filtering body, enhancing the authority of the Court’s
case-law in the States Parties, advisory opinions and the award of just satisfaction.
I should first like to congratulate the Wise Persons on their report, which
makes a very clear choice from among the various proposals that have been discussed in the Court and outside it over recent years, during the debates on Protocol No. 14. It does not propose to introduce a discretionary power for the
Court to decide whether or not to examine a case, similar to the certiorari procedure of the United States Supreme Court (the power to “pick and choose”). Instead, it takes individual applications as its starting point. The group insists that
the right of individual application is now one of the key elements of the system
and a fundamental aspect of the European legal culture in this area.
Establishment of a new judicial filtering mechanism (“Judicial
Committee”)
The group recommends the establishment of a new judicial filtering body attached to, but separate from, the Court, to carry out functions that under Protocol No. 14 are assigned to the committee of three judges and single judges.
58
Future developments of the European Court of Human Rights
Ms Wilhelmina Thomassen
A filtering committee could ensure that a judicial decision was taken on all individual applications while enabling the Court to concentrate more on cases that
required closer attention.
A filtering committee such as that proposed by the group should spare
lawyers in the Court Registry the need to draft numerous committee decisions
while at the same time offering them more opportunity to undertake the necessary research and drafting for complicated cases. Separating the Court’s two
functions would allow each to be conducted at its own pace.
I would like to make two points concerning the introduction of this committee.
The committee’s jurisdiction
According to the report, the Committee would perform the functions that,
under Protocol No. 14, are assigned to the committee of three judges and single
judges. The Judicial Committee would have jurisdiction to hear all applications
raising admissibility issues and all cases which could be declared manifestly wellfounded or manifestly ill-founded on the basis of well-established case-law of the
Court.
The Committee’s jurisdiction could be still further clarified. Could it hand
down inadmissibility decisions that would today be the responsibility of the
chambers? Examples include such cases as Bankovic (NATO bombardment of
Belgrade), Vo v. France (Article 2 and the unborn child), Kok v. the Netherlands
(anonymous witnesses in criminal cases) and others declared inadmissible but
which are well reasoned.
If it were thought appropriate to maintain the current distinction between decisions on ill-founded cases that are dealt with by committee and inadmissibility
decisions on well reasoned cases that are dealt with by a chamber, a new criterion
could be introduced to distinguish between the two sorts of cases, namely cases
that were ill-founded and ones that were manifestly ill-founded. The Committee
would only have jurisdiction to hear cases in the second category.
The organisational structure of the Committee and its relationship
to the Court
The members of the Judicial Committee would be elected by the Parliamentary Assembly. They should be fewer in number than the number of member
states, and drawn from the different countries on a rotating basis. Their term of
office would be limited. The establishment of the Judicial Committee should
eventually lead to a reduction in the number of Court judges.
in the light of the Wise Persons’ Report
59
Relations between the Court and States Parties to the Convention
The proposed structure could lead to a very clear distinction between the two
types of decisions on applications, namely on admissibility and on the merits,
and between the two sorts of judges.
Some 90% of cases coming before the Court would be declared inadmissible
by a committee of judges that took no part in its legal work.
Moreover, the committee’s judges would perform most of the donkey work
but play no part in establishing case-law.
The first question to be asked is whether the best national legal specialists
would be prepared to give up their functions to undertake such work without
having any role in developing case-law. There would also be a clear hierarchical
distinction between the two sorts of judges, in addition to the separation of judicial functions. This dual separation – of judges and of judicial functions –
could well influence the quality of those selected and adversely affect the coherence of the Court’s case-law.
Such a filtering out of 90% of the caseload should actually be carried out at the
highest level of the Court system.
I would therefore ask whether this filtering committee should not be located
within the Court itself.
The committee could be composed of members of the Court selected on a rotating basis, so that during his or her nine year term of office each judge would
serve for a fixed period on the committee.
This would help to secure both the internal coherence of the Court’s case-law
and the quality of those selected. Filtering would be carried out by judges with
suitable experience because they would have been involved in establishing the
case-law and would be again later.
This should achieve the same results as those sought by the Wise Persons,
namely a separate and well organised filtering system, but without elections to a
committee whose responsibilities would be very limited and also without reducing the number of Court judges, which would not be easy to achieve. It would
also obviate the need to introduce what would otherwise be the very complicated
arrangements for appointing ad hoc judges whenever cases concerned states
that did not have a judge on the Court.
Enhancing the authority of the Court’s case-law in the States
Parties
The group lays great stress on the importance of disseminating the Court’s
case-law, securing recognition of its authority above and beyond the binding
effect of specific judgments on the parties and translating Court judgments.
I fully subscribe to these comments.
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Ms Wilhelmina Thomassen
Disseminating the case-law
My observation concerns the group’s view that responsibility for translation,
publication and dissemination of case-law lies with the member states.
Nowadays, in many member states the oral delivery of decisions and judgments at hearings is increasingly being replaced by publication on the Internet.
It might almost be said that electronic publication is based on the positive obligation in Article 6 of the Convention that requires states to pronounce judgments publicly (Davids en Thomassen). There is no easier way of publishing and
disseminating case-law than using electronic means of communication.
All the reasoned decisions of the ECHR are published on HUDOC. However,
this main source of Convention law is not equally available throughout the world.
This applies in particular to lawyers and officials in countries where the majority of the population do not understand the two languages concerned. This
lack of access diminishes the effectiveness of the Court’s case-law.
One can only hope that all the member states will translate all the judgments
into their own language and distribute these translations to their officials, NGOs
and legal profession.
However, the Wise Persons’ recommendations concerning the dissemination
of the main judgments could easily be implemented by publishing translations
of them in several languages on HUDOC.
Responsibility for this could be taken on by the Court or the Council of
Europe, and could also extend to the translation of judgments and reasoned decisions in the language of whichever state is concerned.
Advisory opinions
The group has considered the introduction of a preliminary ruling mechanism on the model of that existing in the European Union.
Its reasons for deciding that such a system would not be appropriate for the
Convention are convincing.
The Convention model presupposes the exhaustion of domestic remedies
and member states have a certain margin of discretion. Such a system does not
readily lend itself to preliminary rulings. It would also add considerably to the
Court’s workload and lengthen proceedings.
Instead, the group thinks it should be possible to ask the Court for advisory
opinions on legal questions relating to interpretation of the Convention and its
protocols.
Such requests would be optional for national courts and the Court’s opinions
would not be binding.
in the light of the Wise Persons’ Report
61
Relations between the Court and States Parties to the Convention
All the States Parties to the Convention should have the opportunity to
submit observations to the Court on the legal issues on which an opinion is requested.
The Court’s new advisory powers would be subject to strict conditions. It is
proposed that:
a. only constitutional courts or courts of last instance should be able to submit
a request for an opinion;
b. the opinions requested should only concern questions of principle or of
general interest relating to the interpretation of the Convention or its protocols;
c. the Court should have discretion to refuse to answer a request for an opinion.
For example, the Court might consider that it should not give an answer in
view of the state of its case-law or because the subject-matter of the request
overlapped with that of a pending case. It would not have to give reasons for
its refusal.
Let the national courts decide
The proposal bears a certain resemblance to the preliminary ruling mechanism and I believe that the same reservations apply to advisory opinions.
Firstly, as with the former, the right to request opinions could be an easy
option for national courts.
Such requests might also lengthen proceedings. Under this procedure, any
member state’s observations would have to be circulated to the other member
states and if the supreme court concerned failed to accept the Court’s ruling, as
would be its right, the proceedings might then continue anyway before the
Court.
Moreover, this option would be unlikely to reduce the Court’s workload.
Finally, the Convention case-law is more protective than technical in nature.
This protective character is not particularly suited to requests for opinions. Individuals’ protection is essentially a national responsibility. Rather than seeking
the Court’s opinion, national courts must decide for themselves whether treatment is inhuman or proceedings are unfair.
Courts should not be invited not to reach a decision, and their relations with
other branches of government should not be weakened.
The individual and a fair hearing
A final comment should be made on the position of the individual.
The proposal would grant states the right to refer cases to the Court, which
would be an innovation. However, this new feature should not mean that discussions before the Court were confined to a national supreme court, the government of the same country and other states, without the participation of the indi62
Future developments of the European Court of Human Rights
Ms Wilhelmina Thomassen
vidual who was party to the proceedings or would be the subject of the request
for an opinion. If states are to be granted a right of referral, the same should also
apply to other parties, such as NGOs.
Unfortunately, the Court was unable to rule on the merits of the Emesa Sugar
v. the Netherlands case, in which the applicant complained that in the preliminary proceedings in Luxembourg it had not been allowed to respond to the
opinion of the Advocate General to the Court of Justice of the European Communities. The applicant relied on the case-law of the Court, which had ruled in
numerous cases against France that the impossibility of responding to opinions
of the Advocate General was in breach of the adversarial principle. This issue
needs to borne in mind in the context of requests for opinions.
The award of just satisfaction
The group thinks that the functions arising from Article 41 should be assigned to national courts, unless the Court considers that there are no grounds
for awarding compensation to the victim, in particular because full reparation is
possible or because the judgment finding the violation constitutes sufficient reparation in itself.
On the other hand, where the Court considers that the victim must be
awarded compensation, the decision on the amount of compensation should
normally be referred to the state concerned.
The following rules would apply to national courts: each state should designate a judicial body with responsibility for determining the amount of compensation and inform the Committee of Ministers of the Council of Europe of the
body so designated, the determination of the amount of compensation should be
consistent with the criteria laid down in the Court’s case-law and the victim
should be able to apply to the Court to challenge the national decision by reference to those criteria, or where a state failed to comply with the deadline set for
determining the amount of compensation.
The position of applicants
From a human rights standpoint, it is not necessarily logical to oblige applicants to return to the domestic courts after they have already exhausted domestic remedies and the Court has found that their rights have been violated.
The position of the Court
On the other hand, the group is probably correct in arguing that the Court
cannot be expected to act as a court of auditors, particularly since the preparation of and discussions on Article 41 decisions take a certain amount of time. The
proposal would enable the Court to concentrate on its main task rather than
in the light of the Wise Persons’ Report
63
Relations between the Court and States Parties to the Convention
making complicated calculations about the causal relationship between violations and damage suffered.
But there would be appeals against national decisions in complex cases such
as those of Beyeler or the King of Greece, in other words precisely the type of case
that the group is trying to spare the Court.
The position of national systems
It is not clear whether the obligation to establish a single national body to establish the level of compensation would be sufficiently compatible with domestic
civil law. Many European systems allow applicants to claim damages in the domestic courts following Court findings of violations, even when the latter has
ruled under Article 41. In the Netherlands, for example, such applicants can take
their cases to three levels of courts: first instance, appeal and cassation (Van
Mechelen).
It is also reasonable to assume that national appeal and supreme courts are in
a better position to rule on decisions at first instance since these often revolve
around the preparation of evidence and the causal link between the violation and
the damage. The proposal could be incompatible with national systems and
impose restrictions on domestic remedies.
Alternative
How then can we reconcile applicants’ best interests with that of the Court
not to become a court of auditors?
One possibility is to draw a distinction between pecuniary and non-pecuniary damage. Since the latter reflects the extent to which the Court considers that
an applicant’s rights have been breached, it might retain its jurisdiction in this
area.
This would in fact be an extension of the function assigned to it by the group
of deciding that there were no grounds for awarding compensation to the victim,
in particular because full reparation was possible or because the judgment
finding the violation constituted sufficient reparation in itself. The workload
arising from such decisions would be limited because they could be standardised.
In the case of material damage, rather than referring cases to domestic courts
the Court could lay down fixed sums, thus avoiding the risk created by the
group’s proposal that applicants would find themselves in the middle of a game
of ping-pong between the national authorities and the Court. If an applicant did
not agree with the amount proposed, he or she would be free to initiate domestic
proceedings, without the need for the national authorities to change their appeal
structure or for the Court to act as a court of final instance. There would be no
reason to inform the Committee of Ministers.
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Ms Wilhelmina Thomassen
If a domestic system did not function properly, an applicant could bring the
matter before the Court for violation of the Convention, in particular Article 6,
if the domestic decision was not executed, or Article 13, if the national remedy
was ineffective. If the Court then found that there had been a violation it would
afford just satisfaction.
These are the four subjects that I wished to consider. I hope that the Wise Persons’ Report and our discussions today will us help to find a way of securing the
long-term effectiveness of this unique and irreplaceable body, the European
Court of Human Rights. Ž
in the light of the Wise Persons’ Report
65
Alternative or complementary
means of resolving disputes
and other issues broached
in the Wise Persons’ Report
Mr Thomas Hammarberg
Council of Europe Commissioner for Human Rights
We are all gathered here thanks to the hospitality of the Presidency of San
Marino to mark the kick-off of the report of the Group of Wise Persons. I see this
major event as a turning point of a reflection process which started back in May
2004. The different steps of this process, namely the “reform package” of the recommendations accompanying Protocol No. 14 to the European Convention on
Human Rights (or “the Convention”), the Oslo seminar in 2004, the Warsaw
Summit which lead to the creation of the Group of Wise Persons were all animated by the same guiding principle: bring back the responsibility for respecting
and protecting human rights to the member states in the name of the subsidiarity
of the European Convention on Human Rights mechanism, affirmed forty years
ago by the Court23 and qualified once again by the Group of Wise Persons as “one
of the cornerstones of the system for protecting human rights in Europe”.24
23. Handyside v. the United Kingdom, 7 December 1976, Application No. 5493/72, §48: “The
Court points out that the machinery of protection established by the Convention is subsidiary
to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of
the ‘Belgian Linguistic’ case, Series A no. 6, p. 35, para. 10 in fine). The Convention leaves to
each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become
involved only through contentious proceedings and once all domestic remedies have been exhausted (Article 26)”.
24. Report of the Group of Wise Persons, para. 16.
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Future developments of the European Court of Human Rights
Mr Thomas Hammarberg
The need to relieve the Court from its workload is one more reason to underline our attachment to the principle of subsidiarity. When we reaffirm our attachment to this principle –which the European Court of Human Rights (“the
Court”) in its fertile case-law has defined in its various aspects25 – and we remind
member states of their role as the natural guarantors of human rights, we actually
pledge for the development of a human rights conscience at all levels of society.
One year after the taking up of my functions and having visited different parts of
our continent, this necessity appears even more evident. The development of a
human rights conscience in our member states gives full effect to the objective
character of the Convention and the collective guarantee of its system26 as it was
qualified by the former European Commission of Human Rights. At this historic
point in time, when we are planning to go further, we ought to remember the
guiding principles of our history.
The title of my intervention “Alternative or complementary means of resolving disputes” is the one under which the report of the Group of Wise Persons –
together with the part on friendly settlements and mediation – envisages the
new functions that the Commissioner should undertake with ombudsmen and
national human rights institutions (“NHRIs”) in order to assist the long term effectiveness of the Convention. This title did not figure in the interim report
issued by the Group for the Ministerial Session in May 2006. Thus, before entering into the substantive part of my intervention, I would like to make some preliminary remarks of a more formal nature.
When the interim report was issued, I had the honour to be invited by the
Chairman of the Group, Mr Rodríguez-Iglesias, to submit my comments in writing. The publication of the interim report coincided with the taking up of my
functions and with the opening of two gates of major importance for the future
of my work. First, the preparation for the entry into force of Protocol No. 14
which allows the Commissioner to take part in the judicial proceedings before
the Court without betraying the explicit prohibition of a judicial competence as
provided with by his mandate. Secondly, the decision to expand and intensify my
co-operation with ombudsmen and NHRIs building on the very important foundations set up by Alvaro Gil-Robles.
I submitted my comments to the interim report and as the latter referred to
the need for an enhanced co-operation with ombudsmen and NHRIs (which
under my mandate are defined as National Human Rights Structures –
25. See inter alia, Dinah Shelton, Subsidiarity and Human Rights Law, Human Rights Law
Journal, 28 April 2006, Vol. 27, No. 1-4, p. 4-11.
26. Decision of the Commission as to the Admissibility of Application No. 788/60 lodged by
the Government of the Federal Republic of Austria against the Government of Italy, 11 January
1961.
in the light of the Wise Persons’ Report
67
Alternative or complementary means of resolving disputes
“NHRSs”), I decided to consult the latter immediately. Indeed, the co-operation
between NHRSs and the Commissioner was based, from the outset, on the
mutual respect of each other’s independence. As a result of a conference in
Vienna in June 2006, the European branch of the International Ombudsman Institute (IOI) prepared a questionnaire for the attention of its members in order
to collect their reaction to the Group of Wise Persons’ interim report and my
comments thereto.27 Preliminary discussions with the European Group of
NHRIs were held in September 2006 in Athens during the 4th Round Table of the
Commissioner and the European NHRIs.28 I had informed the Group of Wise
Persons of all these consultations during the hearing they organised with me in
September 2006. I am glad that in its final report the Group has noted “with approval that the Commissioner is extending his current co-operation with national and regional ombudsmen and national human rights institutes” (para.
112).
The discussions continued in Dublin in December 2006 and in January 2007
in Berlin respectively with NHRIs and ombudsmen.29 This intense dialogue will
be pursued in Athens on 12 and 13 April 2007 on the occasion of a Round Table
co-organised by the Greek Ombudsman and my Office. It will bring together the
ombudsmen and the NHRIs of all Council of Europe member states and will
mark the kick-off of a new phase of co-operation. With a view to preparing the
Athens Round Table next month, my Office has prepared a draft background
paper defining the terms of the future co-operation between NHRSs and the institution of the Commissioner.
Let me now turn to some of the detailed proposals contained therein, leaving
aside issues not covered by the Wise Persons’ Report. I would like to stress that
the proposals I am making to the National Human Rights Structures do make the
necessary link between the suggestions of the Group of Wise Persons and those
emanating from other Council of Europe instances on the same topics. I see
them all as complementary. In this respect, particular reference is to be made to
the work carried out by the Committee of Experts for the improvement of procedures for the protection of human rights (DH-PR) working under the aegis of
the Steering Committee for Human Rights (CDDH) following the new mandate
27. Compilation of replies to a questionnaire of the International Ombudsman InstituteEuropean Region, CommDH (2007) 1, 17 January 2007, document to be found on the Commissioner’s website.
28. 4th Round Table of the European National Institutions for the Promotion and Protection
of Human Rights and the Council of Europe Commissioner for Human Rights, Athens 27-28
September 2006 (organised jointly with the Greek Commission for Human Rights). The complete file of the Round Table can be consulted at the Commissioner’s website.
29. The initiative for that meeting came from the President of the European Chapter of the
IOI, the Austrian Ombudsman Peter Kostelka.
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Future developments of the European Court of Human Rights
Mr Thomas Hammarberg
given to the latter by the Committee of Ministers. My office has participatory
status in that Committee and is involved in the work carried out there.
The first proposal mentioned in the Wise Persons’ Report is that the Commissioner and his partners “should respond actively to the announcement of
Court decisions finding serious violations of human rights” (para. 110).
There can be no better implementation of this proposal than co-operating
with NHRSs in order to assist the other Council of Europe instances as well as
national authorities in rapidly executing the Court’s judgments, in particular
pilot judgments. Indeed when it comes to monitoring the execution of judgments, NHRSs and the Commissioner are very well placed to inform the Court
and the Committee of Ministers as to whether or not practices or situations declared in breach of the Convention by the Court persist or have actually been
stopped and the relevant Court judgment thus been implemented. Given their
longstanding experience of constructive dialogue with the authorities at all
levels, they could not only play the role of a watchdog, but also be helpful to the
authorities for achieving that objective. This becomes much more relevant with
a view to the tripartite annual meeting on execution of judgments between the
Committee of Ministers, the Parliamentary Assembly and the Commissioner in
accordance with the Declaration of 19 May 2006.30
Many channels for the timely sharing of pertinent, reliable information need
to be established. On the one hand, NHRSs could provide information to the
Commissioner who could use it for his institutionalised relations with the Committee of Ministers and the Parliamentary Assembly. On the other hand, the
Commissioner, in reaction to information provided by the Council of Europe instances, could work with NHRSs at the national level. This could be done in the
context of country visits or on an ad hoc basis. The latter modality might be appropriate with respect to pilot judgments where the Group of Wise Persons envisages a specific role for the Commissioner’s partners.31 Ombudsmen could act
as mediators in order to assist in addressing the issue at national level. The Commissioner stands ready to offer his advice and his guidance to them in order to
ensure that the procedures are fair and in keeping with ECHR standards. The
Wise Persons’ Report does not mention explicitly the Commissioner in the part
dedicated to pilot judgments.32 However, the role envisaged by the Group of
30. Declaration of the Committee of Ministers on sustained action to ensure the effectiveness of the implementation of the European Convention on Human Rights at national and
European levels adopted on 19 May 2006, point X (c).
31. “113. This network could help to reduce the Court’s workload with the active support of
the Commissioner, who could identify a specific problem in a state likely to trigger a large
number of applications to the Court and help to find a solution to the problem at national level
in conjunction with the national ombudsman […]”.
32. Paras. 100-105.
in the light of the Wise Persons’ Report
69
Alternative or complementary means of resolving disputes
Wise Persons for the Commissioner and the ombudsmen at national level does
have a direct bearing on this issue.
I believe that, with the assistance of NHRSs, the Commissioner could assist
the Court in identifying cases that should give rise to a pilot judgment, in defining the domestic measures required by the execution of a judgment in such a
pilot case and in understanding the difficulties preventing national authorities
from taking such measures. The Commissioner and his partners could help the
Court to formulate realistic, inventive and precise prescriptions of the measures
expected from the states concerned, not only the states party to the proceedings
but also third states concerned by the substance of the judgment.
Furthermore, and although these proposals do not figure explicitly in the final
report of the Group of Wise Persons, the work regarding the execution of judgments should in my view involve the top priority recommendations of 2004,
namely Recommendation Rec (2004) 5 on the verification of the compatibility of
draft laws, existing laws and administrative practice with the standards laid
down in the European Convention on Human Rights and the improvement of
domestic remedies called for by Committee of Ministers’ Recommendation
Rec (2004) 6. I believe that the findings of the Court, especially in pilot cases,
should lead the Commissioner and his partners to take a proactive approach in
triggering verification procedures to assess the compatibility of draft laws, existing laws and administrative practices with the ECHR standards as they emerge
from the Court’s case-law. From the work carried out at present by the DH-PR it
becomes clear that NHRSs have a key competence regarding both recommendations. I stand ready to assist them in initiating such compatibility exercises in
their respective countries, in discussing the findings of such exercises with the
authorities and in issuing opinions related to national legislation and administrative practices. I also stand ready to support findings by the NHRSs with
respect to deficient domestic remedies in the way they deem it appropriate Adequate communication channels and procedures between the Commissioner
and his partners would need to be instituted for all these purposes.
The second package of proposals concerns the dissemination of information
on human rights and the Strasbourg Court.33
33. “112. The Group notes with approval that the Commissioner is extending his current cooperation with national and regional ombudsmen and national human rights institutes in
order to form an active network of all these institutions, so as to disseminate appropriate information on human rights and, as far as their competence permits, take action on alleged violations and abuses.
113. […] National ombudsmen could also play a role in informing the public about the right to
apply to the Court by distributing application forms and, above all, informing the public about
the Court’s mandate and competence and about the Court’s mandate and about the admissibility criteria contained in the Convention.”
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Future developments of the European Court of Human Rights
Mr Thomas Hammarberg
I have already explained on an earlier occasion my views on dissemination of
information regarding the execution of judgments. During the meeting with the
ombudsmen in Berlin, the discussion focused on the dissemination of relevant
information on the Court’s case-law. The latter would be in line with the part of
the Wise Persons’ Report on Enhancing the authority of the Court’s case-law in
the States Parties.34 From the work carried out by the DH-PR it seems that most
of NHRSs receive adequate information on the Court’s case-law, which was confirmed by some ombudsmen at the meeting in Berlin in January 2007. However,
it has been decided in Berlin to explore the desirability and usefulness of receiving information on the Court’s case-law from the Commissioner’s Office on targeted issues dealt with by NHRSs at national level. In the Athens Round Table I
intend to discuss if it would not be desirable that NHRSs, in co-operation with
the Commissioner, accept the task of providing general information to individuals about the Court’s mandate and competence, admission criteria and just satisfaction policies.
I have read carefully the concrete proposals of the Group regarding friendly
settlements and mediation. Although bargaining might well bring about relief
for the Court’s workload, it might also entail the risk that the practical arrangements found between the parties to a case are questionable with respect to questions of law and principle. This procedure should remain in line with the spirit
of the Convention. In case national ombudsmen are involved, I stand ready to
contribute through advising and working with national ombudsmen in this
respect in order to ensure that the procedures are fair and in keeping with the
Convention’s standards.
Allow me to conclude by making some final remarks with respect to three remaining issues touched upon by the Group of Wise Persons in its report:
` First, the question of whether or not the mandates of NHRSs allow them to
deal with human rights problems. The Group of Wise Persons has addressed
that issue in the following terms:
“111. Under his mandate, the Commissioner facilitates the activities of national ombudsmen and similar institutions. However, these are not always
competent in human rights matters. The Committee of Ministers might consider adopting a recommendation with the aim of assigning such competence
to them.” It was made clear in the meeting in Berlin, that some NHRSs cannot
34. Member states’ obligations in this respect are defined by Committee of Ministers Recommendation Rec (2002) 13 on the publication and dissemination in the member states of the
text of the ECHR and of the case-law of the European Court of Human Rights, Committee of
Ministers Resolution (2002) 58 on the publication and dissemination of the case-law of the
European Court of Human Rights and Committee of Ministers Recommendation Rec (2004)
4 on the European Convention on Human Rights in university education and professional
training.
in the light of the Wise Persons’ Report
71
Alternative or complementary means of resolving disputes
deal, without an extension of their mandate, with some of the issues envisaged
by the Group of Wise Persons. This being a prerequisite for the implementation of the Group of Wise Persons’ proposals and for the other items of the enhanced co-operation, the participants of the Berlin meeting decided to consider during the discussions at the Round Table meeting in Athens, whether
additional European standards are required in that respect.
` Secondly, the issue of staff and resources at the disposal of the Commissioner
and the NHRSs has been stressed by the Group of Wise Persons which “considers that the Commissioner should have the necessary resources to be able
to play a more active role in the Convention’s control system, acting either
alone or in co-operation with European and national non-judicial bodies”.35
This constitutes an prerequisite for the rapid and effective implementation of
any programme of enhanced co-operation between them. I welcome such
support which should be also benefit to NHRSs. However, much can already
be achieved with mutual willingness and improved communication. Specific
information provided to NHRSs on the Court’s case-law as well as a special
training for their attention could facilitate their work.
` Finally, the need to ensure full respect for the respective independence of the
Commissioner and his partners should be the cornerstone of an enhanced cooperation agreement. This entails for me the obligation to respect their willingness to co-operate on any given case or not. One year after the beginning
of the second mandate, having travelled in several parts of Europe, I have a
clear picture of the effectiveness of the NHRSs and their contribution to the
development of a Human Rights conscience at national level. While defining
the lines of my further work with them, I feel that a major obligation lies on
us, on the Council of Europe, now: We should offer a quantity and quality leap
to NHRSs in order to co-operate with them more intensely and to complement and assist each other so as to be able to implement what the Wise Persons and others have advised us to achieve. Ž
35. Wise Persons’ Report, para. 110.
72
Future developments of the European Court of Human Rights
Ensuring the long-term
effectiveness of the European
Court of Human Rights
NGO comments on the Group of Wise
Persons’ Report
Amnesty International; Justice; European Human Rights Advocacy
Centre (EHRAC); Liberty; Human Rights Watch; Redress;
Interights; Aire Centre
Introduction
We believe that the European Court of Human Rights (hereafter “the Court”)
is a “pillar” in the European system for the protection of human rights.
The Court has ensured that applicants have obtained redress for violations of
human rights when states have failed to provide an appropriate remedy. In doing
so, it has played a crucial role in holding states accountable for these violations.
Strengthened by the Committee of Ministers’ supervision process, the implementation of the Court’s judgments have led to human-rights-compliant
changes in the law and practice in states which are parties to the Convention for
the Protection of Human Rights and Fundamental Freedoms. The judgments of
the Court have provided essential guidance to states of the Council of Europe
and to other countries, on the steps necessary to respect and secure fundamental
human rights. In the words of the Group of Wise Persons,36 the Court “lay[s]
down common principles and standards relating to human rights and determines the minimum level of protection which states must observe.”37
36. The Group of Wise Persons is mandated by the Council of Europe to make proposals
aimed at ensuring the long-term effectiveness of the Court.
37. Paragraph 24 of the Report of the Group of Wise Persons, November 2006.
San Marino Colloquy, 22-23 March 2007
73
Ensuring the long-term effectiveness of the European Court of Human Rights
The right of individuals (and organisations) to submit an application directly
to the European Court of Human Rights lies at the heart of the European regional
system for the protection of human rights, and is part of the fundamental philosophy of the European Convention on Human Rights.38 We consider that its
essence is the right of individuals to receive a binding determination from the
European Court of Human Rights as to whether the facts presented in admissible
cases constitute a violation of the rights enumerated in the European Convention on Human Rights. We welcome the Group of Wise Persons’ intention to
ensure that the reforms it recommends do not affect the substance of the right
of individual application.
We recognise that the enormous number of individual applications which are
being lodged with the Court, coupled with the backlog of cases pending before
it, in the context of the Court’s current resources, jeopardise its functioning and
consequently the right of individual application.
While addressing these issues was precisely the objective of the package of
reforms adopted by the Council of Europe’s Committee of Ministers in May
2004, including a series of recommendations of the Committee of Ministers to
member states and the adoption of Protocol No. 14 to the European Convention
on Human Rights, these measures have yet to be implemented. Furthermore, it
is clear that more is needed.
We welcome the continuing commitment of the member states of the Council
of Europe to ensure the long-term effectiveness of the European Court of Human
Rights. This commitment was evidenced, among other things, by the decision
taken by the Heads of State and Government gathered at the 3rd Summit of the
Council of Europe to establish a Group of Wise Persons to consider this issue.39
We urge the Committee of Ministers to clarify, as a matter of urgency, the
impact on the reform process of the recent negative vote by the Russian Duma
on the ratification of Protocol No. 14 to the European Convention on Human
Rights.
We consider it important that the Council of Europe carefully and transparently evaluate the impact on the Court of any reforms over a reasonable period
of time, including those related to Protocol No. 14 if it enters into force. We urge
the member states of the Council of Europe to ensure sufficient financial and
expert resources to undertake such an evaluation.
38. See Warsaw Declaration at para. 2 and Action Plan at para I (1) available at http://
www.coe.int/t/dcr/summit/20050517_decl_varsovie_en.asp; see also para. 23 of the
Report of the Group of Wise Persons, 15 November 2006.
39. The Mandate and Composition of the Group of Wise Persons is set out in the Decision
on item 1.5 of the Committee of Ministers Deputies of 14 September 2005 and in paragraphs
1 and 3 of the Group of Wise Persons’ Report of 15 November 2006.
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We consider that any reform should be designed to meet the following seven
objectives:
` Better implementation of the European Convention on Human Rights at national level, thereby reducing the need to apply to the Court for redress;
` Preservation of the fundamental right of individual petition (the essence of
which is the right of individuals to receive a binding determination on admissible cases from the European Court of Human Rights on whether the facts
presented constitute a violation of rights secured in the European Convention
on Human Rights);
` Efficient, fair, consistent, transparent and effective screening of applications
received, to weed out the very high proportion (around 90%) of applications
that are inadmissible under the current criteria;40
` The expeditious rendering of judgments, particular in cases that raise repetitive issues concerning violations of the European Convention on Human
Rights where the Court’s case-law is clear – which represent some 60% of the
Court’s judgments on the merits – and those that arise from systemic problems;
` Effective execution of the Court’s judgments by Council of Europe member
states, including appropriate follow-up by the Committee of Ministers where
individual member states are slow to act or respond inadequately to Court
judgments;
` Adequate financial and human resources for the Court, without drawing on
the budgets of other Council of Europe human rights monitoring mechanisms and bodies;
` Transparent expert monitoring and assessment of the impact any reforms
agreed on the workload of the Court, and their effect on the right of individual
application.
The following contains our assessment of the proposals in the Report of the
Group of Wise Persons, in light of those objectives. It also includes additional
recommendations.
Steps at the national level
Implementation of Committee of Ministers recommendations
The primary responsibility for guaranteeing respect for the rights enshrined
in the European Convention on Human Rights lies with the states parties themselves. This includes the obligation to ensure the availability of effective and accessible remedies.
40.
Paragraph 27 of the Report of the Group of Wise Persons, November 2006.
in the light of the Wise Persons’ Report
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Ensuring the long-term effectiveness of the European Court of Human Rights
We remain convinced that achieving greater respect for the Convention at the
national level would significantly diminish the Court’s overall case load by reducing the need for people to seek redress from the Court for violations of their
rights. We agree with the assessment of the Group of Wise Persons that “the remedies available at national level must be effective and well known …”.41
We consider that “length of proceedings” cases, which account for some 25%
of the judgments issued by the Court in 2005, result from systemic deficiencies
in the states concerned. “Length of proceedings” cases involve the fundamental
right of access to justice. Cases about excessive length of pre-trial detention,
which also comprise a significant proportion of the Court’s judgments on the
merits, touch directly on the right to liberty and the right of detained persons to
trial within a reasonable time or release pending trial. Ensuring the prompt and
effective implementation of such judgments should be a major priority for the
Committee of Ministers. We consider that the Committee of Ministers should
require the states concerned to develop and implement Action Plans which
address both the issue of compensation and the necessary structural changes,
without undue delay.
Since states are already obligated under the European Convention on Human
Rights, (in particular under Articles 5 (5), 6 (1) and 13) to ensure effective, accessible domestic remedies in the event of such violations, we question whether an
additional European Convention on Human Rights provision, as proposed by
the Group of Wise Persons42 is necessary, or would result in states taking the
measures necessary to address underlying structural problems. We consider,
however, that the Committee of Ministers should bring concerted pressure to
bear on states found regularly to violate these rights to take all necessary measures to implement these provisions of the Convention and Recommendation
Rec (2004) 6.
We agree that governments have the responsibility to translate, disseminate
and publish in appropriate, widely read and accessible journals, the Court’s judgments and ensure that “national judicial and administrative institutions should
be able to have access to the case-law of the Court in their respective languages.”43
Accordingly, we regret the fact that, despite repeated commitments to do so,
the majority of Council of Europe member states have yet to implement fully the
recommendations adopted in the course of the reform discussions which began
in 2000, which aim at ensuring better implementation of the European Convention on Human Rights at national level, including effective and accessible domestic remedies.44 We urge each Council of Europe member state to take all neces41.
42.
43.
76
Paragraph 16 of the Report of the Group of Wise Persons, 15 November 2006.
Paragraph 93 of the Report of the Group of Wise Persons, 15 November 2006.
Paragraph 72 of the Report of the Group of Wise Persons, 15 November 2006.
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sary measures to implement these recommendations rapidly. To that end, we
recommend that each member state analyse its laws and practice in the light of
the recommendations and that they each create and implement an action plan
to fill lacunae between state law and practice and the elements set out in each of
the five recommendations, without further delay.
Ombudspersons and national institutions for the promotion and
protection of human rights
We agree with the Group of Wise Persons that ombudspersons and national
institutions for the promotion and protection of human rights have the potential
to play a significant role in providing information about and promoting human
rights, including those secured under the ECHR.45 We consider, however, that in
many member states more must be done to ensure that these institutions meet
the minimum guidelines set out in the Paris Principles and in particular, are truly
independent, appropriately mandated, staffed with experts and adequately resourced. We welcome the work of the Council of Europe’s Commissioner for
Human Rights in co-operating with, and facilitating, the activities of national
human rights institutions and national and regional ombudspersons.
Council of Europe Information Offices46
We agree with the Group of Wise Persons that Council of Europe Information
Offices located in member states could play an important role in informing
people about the European Convention on Human Rights and the case-law of the
Court, including that related to admissibility. This might help to discourage individuals from submitting applications unnecessarily or prematurely, or without
exhausting domestic remedies. (In this regard, we urge the Council of Europe to
make public information about the Information Office in Warsaw, Poland, in44. The relevant recommendations of the Committee of Ministers are: Recommendations R
(2000) 2 of the Committee of Ministers to member states on the re-examination or reopening
of certain cases at domestic level following judgments of the European Court of Human Rights;
Rec (2002) 13 of the Committee of Ministers to member states on the publication and dissemination in the member states of the text of the European Convention on Human Rights and of
the case-law of the European Court of Human Rights; Rec (2004) 4 of the Committee of Ministers to member states on the European Convention on Human Rights in university education
and professional training; Rec (2004) 5 of the Committee of Ministers to member states on the
verification of the compatibility of draft laws, existing laws and administrative practice with the
standards laid down in the European Convention on Human Rights; Rec (2004) 6 of the Committee of Ministers to member states on the improvement of domestic remedies.
45. Paragraphs 20, 111-113 of the Report of the Group of Wise Persons, 15 November 2006.
46. Paragraph 19 of the Report of the Group of Wise Persons, 15 November 2006.
in the light of the Wise Persons’ Report
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Ensuring the long-term effectiveness of the European Court of Human Rights
cluding the scope, methods and findings of any assessment into the Warsaw
office pilot project.)
However, we are concerned at the Group’s suggestion that the personnel in
these offices might also advise individuals about “the existing domestic and
other non-judicial-remedies”. Were such offices to offer advice, there is a danger
of Council of Europe personnel influencing, or being seen to influence, individuals’ decisions whether or not to lodge claims. We do not consider that it is appropriate for Council of Europe personnel to provide such advice, however informal the arrangement; they would not be in a position to act as independent,
impartial advisers (and indeed, conflicts of interest may arise). There is also a risk
that if an applicant seeks redress with a non-judicial remedy identified by the
Council of Europe Information Office, they may find that any subsequent application to the Court is time-barred, under Article 35 (1) of the European Convention on Human Rights.47 We consider instead that such an advisory function
should be played by independent lawyers and NGOs with relevant expertise. We
therefore recommend that national authorities should be urged to provide adequate resources to lawyers and NGOs in order for them to assess and provide
initial advice to would-be applicants to the Court. This should include the provision of free legal aid by the national authorities.
Reform of the European Court of Human Rights
We warmly welcome the fact that the Group of Wise Persons agreed not to
pursue proposals to give the Court a discretionary power to decide whether or
not to take up cases, a proposal rejected during the negotiations that led to the
adoption of Protocol No. 14 to the ECHR. We endorse the Group of Wise Persons’ conclusion that such a power would be “alien to the philosophy of the European human rights protection system” and would undermine the right of individual petition. tend to politicise the system and risk inconsistency, if not
arbitrariness, in decision making.48 We also agree with their assessment that it
“would be perceived as a lowering of human rights protection.”49
We also welcome the Group of Wise Persons’ rejection of the proposal to establish regional courts of first instance. We concur with the views expressed that
such courts would, among other things, raise “the risk of diverging standards and
case-law, whereas the essence of the Convention system is that uniform and co47. Devlin v. the United Kingdom (App. No. 29545/95); Ryabykh v. Russia (App. No. 52854/
99).
48. Paragraph 42 of the Report of the Group of Wise Persons, November 2006, 2006
(CM (2006) 88. Available at: https://wcd.coe.int/ViewDoc.jsp?id=998185.
49. Paragraph 33 of the Interim Report of the Group of Wise Persons, May 2006.
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herent standards, collectively set and enforced should obtain throughout contracting states.”50
Screening body
We share the assessment of the Group of Wise Persons that the exponential
increase in the number of individual applications, coupled with the backlog of
cases pending before the Court, jeopardise its functioning and consequently the
right of individual application.
It is widely agreed that the main challenges facing the Court are: screening
quickly and effectively the very high proportion (90% or more) of applications received which are inadmissible under the current criteria, and handling in an effective and efficient manner the more than 60% of admissible applications that
raise issues about which the Court’s case-law is clear, (known as “repetitive
cases”).
We are concerned at the statement contained in the Group of Wise Persons’
Report that the Court should be “relieved” of manifestly inadmissible applications or repetitive cases which “distract” it from its essential role (paragraph 35).
The process of dealing with manifestly inadmissible cases is clearly burdensome. However, it is important to acknowledge that there is no way to prevent
people from sending applications to the court. There is also no way around the
fact that each application received by the Court will have to be separately thoroughly and effectively screened against the admissibility criteria. This takes time
and resources and, arguably, would take more time and require even more resources if the Court were to apply the additional and complex admissibility criteria introduced into Article 35 of the European Convention on Human Rights
by Protocol No. 14.51 (We consider that, if it enters into force, the impact of the
application of the new admissibility criteria set out in Protocol No. 14 on both
human rights and the Court’s productivity will need to be transparently assessed
and monitored.)
50. Paragraph 83 of the report of the Evaluation Group on the European Court of Human
Rights, September 2001; paragraph 32 of the Interim Report of the Group of Wise Persons,
May 2006; Joint Response to Proposals to Ensure the Future Effectiveness of the European
Court of Human Rights, of 28 March 2003; paragraph 41 of the Report of the Group of Wise
Persons, 15 November 2006.
51. We continue to consider that the changes to the admissibility criteria set out in Protocol
No. 14 to the European Convention on Human Rights, arrived at as a result of a last-minute
compromise, were an unnecessary curtailment of the right of individual application, and were
inimical to the aim of the last reform process because application of the new admissibility criteria is likely to be more time consuming and complex for the Registry and Court. We welcome
Group of Wise Person’s intent to ensure that reforms it recommends do not affect the substance of the right of individual application.
in the light of the Wise Persons’ Report
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Ensuring the long-term effectiveness of the European Court of Human Rights
As to repetitive cases – which make up a large part of the judgments on the
merits issued by the Court – rather than being a “distraction”, on the contrary,
they are almost invariably indicative of a systemic problem within a state that
needs to be addressed. If Friendly settlements (to which both parties to the case
consent) are not reached in these cases, measures must be taken to ensure that
the Court can issue judgments on such cases within a reasonable time, and that
these judgments are implemented, in a manner that ensures not only redress for
the individual concerned, but also the resolution of any systemic problems from
which they arise. With regard to repetitive cases, we believe that the expedited
process for handling manifestly well-founded cases (by a Committee of three
judges) set out in Article 8 of Protocol No. 14, which amends Article 28 of the
European Convention on Human Rights, is one way to ensure their speedier resolution. If it is implemented, the effectiveness of this process will need to be
transparently monitored and assessed.
We concur with the suggestion of the Group of Wise Persons that the effective
and efficient screening of individual applications received by the court could be
facilitated through the creation of a separate screening body, referred to as a Judicial Committee, within the Court. We welcome the recommendations that this
group of judges, to be elected by the Parliamentary Assembly of the Council of
Europe, would be independent, of high moral character and possess the requisite
qualifications for appointment to judicial office and that the composition of this
committee would be gender and geographically-balanced.52 We also welcome
the safeguard proposed by the Group of Wise Persons that would ensure that the
Court could assume jurisdiction to review any decision of such a screening body,
on its own motion.53 We look forward with interest to further examination of the
proposal to create a Judicial Committee to perform this task.
Application forms
At present it is well established that a case can be introduced by letter, without
using the Court’s application form.54 When a letter is used to initiate an application, the applicant is then asked to submit a completed application form, usually
within six weeks.
We welcome the fact that the Court’s application form is soon to be made
available in electronic form.55 Improving access for potential applicants (and
52.
53.
54.
Paragraphs 53 and 54 of the Report of the Group of Wise Persons, 15 November 2006.
Paragraph 64 of the Report of the Group of Wise Persons, 15 November 2006.
See Practice direction – Institution of proceedings, Directions 3, 4 & 7, available at: http:/
/www.echr.coe.int/NR/rdonlyres/9F0B9646-3806-4814-A7CF-345304DCCDB2/0/
PracticeDirectionsInstitutionOfProceedingsMarch2005.pdf.
55.
80
See Paragraph 60 of the Report of the Group of Wise Persons, 15 November 2006.
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NGO comments on the Group of Wise Persons’ Report
their representatives) to the application form in this way is likely to increase the
proportion of applications submitted within the appropriate time limit which incorporate all the requisite information. We recommend however, that measures
be taken to ensure that the application form is made available not only in all the
official languages of Council of Europe member states but also in other major
languages used by individuals living in Council of Europe member states.
We would, however, oppose any recommendation which would impose a requirement that all the requisite information be submitted only on the Court’s application form. Instead, we strongly urge that the Court should retain discretion
on this point (as recommended by Lord Woolf56). We consider that a requirement that applications be lodged on the relevant form may bar effective access
to the Court for some of the most vulnerable individuals. Even with the important development of the application form becoming available online, some
people will find it difficult or impossible to access to the form. This may be
because of a number of factors, for example: lack of access to the Internet, including for those in detention, or the inability to speak a European language.
Pilot judgments57
We agree with the Group of Wise Persons’ analysis that the Court’s development of a “pilot judgment” procedure is significant. It would apply to cases disclosing the existence within a state of a shortcoming which has resulted, or is
likely to result, in the widespread violation of a human right guaranteed under
the European Convention on Human Rights, and which may give rise to a
number of well-founded applications being filed with the Court. We note that
the Group of Wise Persons encourages the Court to use this procedure “as far as
possible in future”.
We welcome Rule 4 of Rules of the Committee of Ministers for the supervision of the execution of judgments and the terms of friendly settlements,
adopted on 10 May 2006.58 This rule requires the Committee of Ministers to pri56. Review of the Working Methods of the European Court of Human Rights, The Right Honourable Lord Woolf, December 2005. “The Court could, if it considered that this was necessary
in the interests of justice, suspend time on receipt of the initial correspondence, and pending
receipt of the properly completed application form. Such an extension would be as a matter of
grace.” (p. 22). Lord Woolf was invited by the Secretary General of the Council of Europe and
the President of the European Court of Human Rights to make recommendations on steps that
could be taken by the European Court of Human Rights to deal effectively and efficiently with
its current and projected caseload.
57. See further: NGO Comments on the Group of Wise Persons’ Interim Report – Further Observations on the Enforcement of European Court Judgments and Just satisfaction, European
Human Rights Advocacy Centre, Interights and the Aire Centre, 28 July 2006.
58. CM/Del/Dec (2006) 963/4.1b, CM (2006) 39 Addendum, available at https://
wcd.coe.int/ViewDoc.jsp?id=999007.
in the light of the Wise Persons’ Report
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Ensuring the long-term effectiveness of the European Court of Human Rights
oritise the supervision of the execution of judgments where the Court has identified a systemic problem, in a manner which is not to the detriment of other priority cases, notably those where the violation established has caused grave
consequences for the injured party. We consider that this will facilitate the rapid
and effective implementation of such judgments. The rule should take into
account the effects of the suspension of proceedings in similar cases pending
before the Court.
Because the suspension of the cases of similarly situated applicants can prejudice those applicants, we consider that it will be necessary for the Committee
of Ministers not only to ensure the rapid execution of “pilot judgments”, but also
to take all possible measures to guarantee that the manner of implementation
genuinely affords an effective remedy for similarly situated persons. In considering the effectiveness of the remedy, the state concerned and the Committee of
Ministers should examine not only whether the measures proposed afford just
compensation, but also whether such measures effectively address the systemic
problem. In length of proceedings cases, for example this would likely include
not only providing financial compensation to those whose rights have been violated but also include reviewing domestic structures for the administration of
justice or enhancing judicial capacity and resources.
We welcome the fact that the Group of Wise Persons has recommended that
time limits should be laid down, to be supervised by the Court, to ensure that
“victims who have already applied to the Court, [whose applications remain “frozen” while the pilot case is heard and the resulting judgment implemented] do
not have to wait indefinitely for just satisfaction”.59
We would go further than the Group of Wise Persons’ recommendations on
“pilot judgments.” Because the procedure is in its earliest stages, we strongly recommend that the Council of Europe should carry out comprehensive monitoring on the adequacy and timeliness of compliance with “pilot judgments.” It
should include consideration of the steps taken by the Committee of Ministers
under its “priority supervision”60 and those taken by the respondent state, as well
as the impact of such judgments.
The monitoring process should seek to answer the following questions:
` In what circumstances will the Court issue a “pilot judgment”?
` What steps can be taken by a respondent state to implement a “pilot judgment”?
` To what extent has a respondent state introduced measures that effectively
address the systemic problem, as well as providing a remedy for the applicant?
59. Paragraph 105 of the Report of the Group of Wise Persons, 15 November 2006.
60. Rule 4 of the Rules of the Committee of Ministers for the supervision of the execution of
judgments and the terms of friendly settlements, adopted on 10 May 2006.
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` What is the effect on similarly situated persons who have already lodged applications with the Court?
` Within the domestic arena, what obstacles exist which may hamper effective
implementation?
` What measures can be taken by the Committee of Ministers to encourage or
facilitate implementation of “pilot judgments”?
` What assistance can be provided by other Council of Europe bodies, such as
the Council of Europe’s Commissioner for Human Rights and the Committee
on Legal Affairs and Human Rights of the Parliamentary Assembly of the
Council of Europe (PACE)?
` What are the appropriate time limits for implementing “pilot judgments”?
Awards of just satisfaction
We oppose the proposal of the Group of Wise Persons to refer decisions on
awards of compensation back to the state concerned.61
We consider that this approach:
a. increases the likelihood of further and lengthy delay in the determination of
compensation decisions. This would be particularly regrettable given that the
individuals affected would already have had to wait a number of years for a
judgment acknowledging a violation of their human rights;
b. increases the risk of sharply differing standards being applied to awards of just
satisfaction in different Council of Europe member states; and
c. potentially places an additional monetary burden on victims of violations of
the European Convention on Human Rights, who might be required to pay
filing fees and lawyers’ fees, as well as other costs incurred in such proceedings. We believe that it would inappropriate to ask a successful applicant, in
respect of whom the Court has established a violation of the Convention, to
bear any further expenses in determining the amount of compensation for violations committed by the state concerned.
We also note that implementation of this proposal would require each
member state to adopt the necessary laws and procedures which would grant national courts jurisdiction to consider such cases. The information provided to
date by member states related to the implementation of Recommendation
(2002) 2 indicates, that not all member states have procedures for the reopening
or re-examination of all cases (civil and criminal), even following a judgment of
the Court.62
We remain, however, strongly supportive of the proposal made by Lord Woolf
to establish a just satisfaction unit within the Court’s Registry which would carry
61.
62.
Paragraph 96 of the Report of the Group of Wise Persons, 15 November 2006.
See CDDH (2006) 008 at pages 13-14.
in the light of the Wise Persons’ Report
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Ensuring the long-term effectiveness of the European Court of Human Rights
out the task of assessing just satisfaction claims.63 We believe that in this way, the
Court would be able to rapidly develop the expertise to deal with such claims in
an expeditious and logically consistent manner.
Advisory opinions
We note the Group of Wise Persons’ proposal to empower the Court to give
Advisory Opinions at the request of national courts.64 We consider that this has
the potential to assist national courts in ensuring better implementation of the
European Convention on Human Rights at the national level and reducing the
number of applications submitted to the Court on the issue concerned. While
our commentary on the Group of Wise Persons’ Interim Report endorsed the
proposal, on further reflection we consider that the concept raises a number of
important issues that require its further elaboration and development.
First, it is currently unclear in what circumstances an Advisory Opinion could
be sought. Second, we suggest that the questions posed by the referring court
must be sufficiently precise to ensure that the process of giving an Advisory
Opinion is meaningful and consistent with the overall approach of the Court.
Third, it is vital that would-be applicants would be able to participate effectively
in the process of seeking an Advisory Opinion. We would therefore propose that
legal aid should be available to would-be applicants whose cases are submitted
to the Court for such an Opinion. Fourth, we also consider that it would be necessary to ensure that third parties are allowed to intervene in such cases, whether
or not they had previously intervened in the domestic proceedings. Fifth, we
would recommend that an Advisory Opinion should be binding as to the interpretation of the Convention on all member states. Otherwise there is a substantial risk that member states might choose not to follow the Court’s opinion and
thereby undermine its authority. Finally, we would be concerned if the new admissibility criteria set out in Protocol No. 14 to the European Convention on
Human Rights were to be applied to any applications arising following a national
court’s receipt of such an Advisory Opinion; we would consider that such applications would merit a full review by the Court of the manner in which the national court had applied the Advisory Opinion in the case at issue.
63. Review of the Working Methods of the European Court of Human Rights, December 2005,
at page 40. This report is available by a link on the Court’s web site http://www.echr.coe.int/
ECHR/.
64. Paragraphs 81-86 of the Report of the Group of Wise Persons, 15 November 2006.
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Concerning the institutional status of the Court and the judges
Nomination and election of judges
We welcome proposals of the Group of Wise Persons to enhance the reputation of the Court by strengthening the process by which judges of the Court are
nominated and elected.
We consider that changes should be made to the nomination process in many
states (including ensuring that they are open and transparent) and to enhance
the Parliamentary Assembly’s election process. Doing so would enhance the
credibility and effectiveness of the Court, and improve public confidence in Europe’s primary institution for the protection of human rights.
We endorse in particular the proposals to require that the professional qualifications and knowledge of languages of candidates be taken into consideration
during the election of judges by the Parliamentary Assembly of the Council of
Europe (PACE).65 We also consider that knowledge and experience in the application of international human rights law should be taken into account.
We welcome the proposal of the Group of Wise Persons for the establishment
of a mechanism whereby PACE would consider, during the election process, the
opinion of a committee of prominent persons on the suitability of candidate
judges for the Court.66 More detailed recommendations in regard to the nomination and election of judges to the Court are set out in Annex B.67
Efforts should be taken to encourage a gender balance and diversity at the
Court at all stages of the nomination and election process.
Budget
We consider that the Court has been hampered by a lack of sufficient human
and financial resources. This is true despite the fact that “no other international
court is confronted with a workload of such magnitude while having at the same
time such a demanding responsibility for setting the standard of conduct required to comply with the Convention.”68 While we note that the budget of the
Court has been increased, we are concerned that this sum was taken from the existing budget of the Council of Europe which reportedly had zero real growth in
recent years. This has meant that the increase of the Court’s budget has come at
65. Paragraphs 117-118 of the Report of the Group of Wise Persons, 15 November 2006.
66. It is proposed that the Committee would be composed of former members of the Court,
current and former members of national supreme or constitutional courts and lawyers with
acknowledged competence.
67. Document “Recommendations for the Procedures for the Nomination and the Election
of Judges to the European Court of Human Rights”, not reproduced in these proceedings.
68. Paragraph 37 of the Report of the Group of Wise Persons, 15 November 2006.
in the light of the Wise Persons’ Report
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Ensuring the long-term effectiveness of the European Court of Human Rights
the expense of funding for other Council of Europe activities, including intergovernmental and targeted cooperation activities. We consider that implementing cuts in one part of the Council of Europe’s human rights budget to finance
improvements in the performance of the Court is short-sighted, since a reduction on other human rights activities (for example awareness raising, etc.) is
likely to increase the burden on the Court in the long run. We therefore call on
the Council of Europe member states to increase the budget of the Council of
Europe overall, including the budget allocated to the Court.
Making the system more flexible as regards the conditions for
reforming it – Establishing a Statute for the Court
We welcome in principle, but with some reservations, the proposal to
empower the Council of Europe’s Committee of Ministers to amend certain “Operating Procedures” of the Court, so as to obviate the need for the time consuming process of drafting, adoption and ratification of additional Protocols for such
purposes. We consider that this could provide more flexibility.
However, we would underscore that, if this proposal were to be further considered, a precise agreement of the contents of the Statute would have to be
agreed in a transparent process. We agree with the Group of Wise Persons on the
list of matters, now determined in provisions of the European Convention on
Human Rights, that should be explicitly excluded from inclusion within any instrument that could be modified by any “simplified amendment procedure.69 In
addition, if Protocol No. 14 were to enter into force, we consider in addition that
the new Article 27 (as would be amended by Article 7 of Protocol No. 14) and the
new Article 28 (as would be amended by Article 8 of Protocol No. 14) should also
be excluded from any simplified amendment procedure since, it is at this stage
of the scrutiny of applications, that vulnerable applicants may risk losing the protection of the Convention organs if the rigour of the single judge and Committee
procedures were to be significantly reduced.
Furthermore, the granting of such a power to the Committee of Ministers
should be accompanied by provisions requiring transparency and consultation
with key stakeholders including the views of Court users, civil society and National Institutions for the Promotion and Protection of Human Rights, before
amendments to operating procedures are agreed. We also endorse the caveat
proposed by the Group of Wise Persons that any such changes should be solely
at the Court’s own initiative.70
69. The suggested list of exclusions is set out in paragraph 49 of the Report of the Group of
Wise Persons, 15 November 2006.
70. Paragraph 48 of the Report of the Group of Wise Persons, 15 November 2006.
86
Future developments of the European Court of Human Rights
NGO comments on the Group of Wise Persons’ Report
Consultation
We consider it incumbent on the Council of Europe and each of the forty-six
member states to ensure that the public (and in particular Court users, civil
society and national human rights institutions) is informed about the on-going
discussions on reform of the Court. Past and future applicants to the Court have
an interest in ensuring its future at least equal to that of member states. Representatives of civil society across the Council of Europe region should be consulted, and their views taken into account before any further reforms to the
Court are made. Ž
in the light of the Wise Persons’ Report
87
Synthesis of the Colloquy
Ms Maud de Boer-Buquicchio
Deputy Secretary General of the Council of Europe
M
r President of the Committee of Ministers, Mr President of the Court,
Mr President of the Group of Wise Persons, Madame Representative of the President of the Parliamentary Assembly, Ambassadors, Distinguished participants,
Dear friends,
Let me start by thanking again the San Marino authorities for having taken the
initiative to organise and host this Colloquy to reflect, at a high technical level,
on the fundamental question of the future development of the European Court
of Human Rights in the light of the Report of the Wise Persons. Let me also thank
all participants for their active participation, their useful insights as well as for
the many constructive ideas put forward.
My role this morning is not to provide you with conclusions but to give you a
synthesis which does not close the discussions as these should and will continue.
The Colloquy has indeed provided interesting food for thought for further work
which will help preparations for the 117th Ministerial Session which will be held
in May 2007. The Committee of Ministers and the intergovernmental committees of the Council of Europe will reflect further on the important proposals put
forward by the Group of Wise Persons and the extremely rich discussions at this
Colloquy. It is important not to lose this momentum.
I count on your understanding that it is simply impossible for me to do justice
to all the speakers and thought-provoking interventions which have contributed
to animated debates over these two days not only in the room but also during our
social gatherings. I will merely try to extract from these debates some elements
which in my view emerge as pointers for our priorities in the immediate, short
and long term. In other words, a picture of where we stand today and some broad
indication of where we should go from here.
In the immediate term, there is not a shadow of a doubt that everything should
be done to ensure that Protocol No. 14 enters into force without delay. We have
88
Future developments of the European Court of Human Rights
Ms Maud de Boer-Buquicchio
all heard President Costa’s solemn appeal to the Russian Federation to ratify the
Protocol before 1 July, and he is absolutely right in stressing that the different
organs and institutions of the Council of Europe are ready to work with our
Russian friends to achieve this. Let’s give Protocol No. 14 a chance!
Many of you have underlined that the entry into force of Protocol No. 14, and
acquiring some experience with its operation and effects, is a precondition for
any further reform of the Convention system in the future. It is simply not yet
possible to make a full assessment today of the kind or scale of reform which
should be contemplated. This of course also constituted a real handicap for the
work of the Wise Persons and the fact that they produced such a high-quality
report under these circumstances is testimony to the collective wisdom assembled in the Group doing justice to its title.
However, waiting for Protocol No. 14 does not mean that we are bound to remaining passive. On the contrary, there was general agreement that it is urgent
to start considering measures, not dependent on Protocol No. 14, which could
be implemented in the short term. I will highlight just a few of the ideas mentioned in our discussions, some of which are among the Wise Persons’ proposals
or Lord Woolf ’s recommendations, without claiming that they all received universal support.
Many interventions stressed the potential of the Court’s developing practice
of adopting pilot judgments and suggested that its use and its potential be kept
under close review in order to reflect on any flanking measures which could be
adopted at national and/or European level. The idea of Council of Europe monitoring of compliance with pilot judgments could be one such measure. It would
indeed make a big difference if we could achieve a situation where the Court
would no longer be required to deal with the merits of repetitive cases.
Furthermore, as Lord Woolf has recommended, it was suggested that the
Court should redefine what constitutes an application. As the Secretary General
put it, one may wonder whether it is really necessary to systematically count each
and every piece of paper reaching the Court as an application.
Support was also expressed for equipping Council of Europe Information
Offices in high case-count countries with an information desk to provide practical assistance to applicants, although some pointed out that this should not
lead to provision of legal advice.
Translation and wider dissemination to target groups of the Court’s key judgments in languages other than French or English is a further example of a short
term-measure. While this is primarily a responsibility of each member state, the
Council of Europe already supports some activities of this kind and we should
examine how we can work together more systematically to make the case-law
more easily accessible in all countries, including, but not exclusively, electronically.
in the light of the Wise Persons’ Report
89
Synthesis of the Colloquy
Similarly, support was expressed for the important efforts of the Commissioner for Human Rights to work in co-operation with national human rights institutions and Ombudsmen, whilst fully respecting their respective independence. This enhanced cooperation covers areas such as better dissemination of
European standards, addressing systemic problems, promoting execution of
judgments, encouraging recourse to pilot judgments and promoting full implementation of the 2004 Recommendations of the Committee of Ministers. This
work will be all the more effective in that the European Convention is now part
of the law of the land in all member states.
Part of the short term measures is what the Secretary General described as
“accompanying measures”: the first of which is ensuring that the Court will continue to be surrounded by a crucially important supporting environment of
Council of Europe activities: standard-setting, monitoring and capacity-building. I cannot but warmly welcome President Costa’s very important statement
that increases for the Court’s budget should not be at the expense of the Council
of Europe. Such approach would be extremely short-sighted indeed. Let’s not put
in danger the very activities that will in the long term be the only ones which will
take away the root-causes of the Court being overburdened.
In the same category falls the full implementation of the 2004 Committee of
Ministers reform package and the Recommendations adopted by the Committee
of Ministers concerning measures to be taken at national level. This work of the
CDDH is crucial, but it is worrying to hear that there are some difficulties, especially in assessing the existence and real impact of national measures taken.
There seems to be a need to reinvigorate this process and to mobilise support for
it, from NGOs and National Human Rights Structures, but also in-house, from
the Human Rights Commissioner, the Venice Commission, the CEPEJ, and possibly other bodies. Perhaps one should try to be more inventive in addressing this
issue.
I will now move on to what one could call long-term measures. To be absolutely clear about what I mean here: these are measures which would take considerable time to elaborate and even more time to take effect. But precisely
because they will take time, it will be important to initiate consideration of them
in the short term.
It is here, of course, that the Wise Persons’ Report offers interesting perspectives, even if not all their proposals received unreserved support at this colloquy.
Our debates have shown that two proposals in particular proved controversial. Several participants saw important disadvantages in the just satisfaction
proposal, arguing that it would risk complicating and prolonging the procedure,
creating divergent standards, or that it would not fit in well with domestic judicial infrastructure for dealing with damages. It might be interesting to explore
whether some of these concerns could be accommodated along the lines sug90
Future developments of the European Court of Human Rights
Ms Maud de Boer-Buquicchio
gested by Judge Thomassen, distinguishing between pecuniary and non-pecuniary damage.
Many interventions addressed the proposal to institute a judicial committee
which would be responsible for filtering applications. While it was made clear
that this proposal differed in important respects from earlier proposals for a separate filtering body, several participants believed that some critical questions remained unanswered. I will not go into detail here, but merely recall that some
concerns were expressed about whether this change would make a real difference in terms of the effectiveness of the Convention system whilst others criticised the suggested departure from the practice so far of one state, one judge.
Such departure was felt to sit ill with the idea of equality of states in the Convention system and with the notion that the legal systems of all States Parties should
be represented on the Court, the addition of an ad hoc national judge being regarded as insufficiently covering the need for coherence in the Court’s case-law.
An interesting variant was suggested which might avoid at least some of these
disadvantages, since it would involve rotation among the current judges, alternating filtering tasks and adjudication on the merits. Another idea voiced is the
possibility to increase the number of judges, for example by adding judges at the
expense of the states concerned, or a creative use of the ad hoc judge provision.
In any case, major structural changes, like the introduction of a judicial committee, would need to be reconsidered as part of a much broader reflection
should the need for radical reform arise, including on the functioning of the
Court: today and in the light of the operation of Protocol No. 14.
The proposal concerning advisory opinions received mitigated support.
While many thought it intellectually sound, the main objections raised against
it were that it would not necessarily reduce the workload of the Court (rather the
opposite), that it might be difficult to reconcile with the Court’s contentious role
and with the responsibility of the national judge under the Convention.
Some other proposals of the Wise Persons were largely welcomed as useful
avenues for further work, which could start soon.
First, the proposal to make it easier to adapt the Convention machinery received broad support. Making this possible however would require an amendment to the Convention empowering the Committee of Ministers to do so and
would be without prejudice to the power of the Court to adopt its own rules of
procedure. It was recognised that this proposal did not receive sufficient attention during the drafting of Protocol No. 14 simply for lack of time.
Second, several participants expressed support for the proposal to adopt a
new Council of Europe Convention containing obligations for member states as
regards the availability, functioning and effectiveness of domestic remedies, in
particular concerning excessive length of proceeding cases. The relevant Com-
in the light of the Wise Persons’ Report
91
Synthesis of the Colloquy
mittee of Ministers’ Recommendation could serve as a starting point for this
work.
There is no reason why these last two proposals could not already now be
studied in greater detail by the Steering Committee for Human Rights.
Ladies and Gentlemen,
This Colloquy is part of a much broader process, triggered off by the Wise
Persons’ Report. Without prejudging the decisions to be taken by the Committee
of Ministers, the next steps in this process will probably include preliminary discussions among governmental experts in the Steering Committee for Human
Rights next month and, a month later, the 117th Ministerial Session of the Committee of Ministers of the Council of Europe. On that occasion, decisions will undoubtedly have to be taken to set the framework for future follow-up to the Wise
Persons’ Report, a process which I trust will be open to all the ideas expressed
during these two days and give a rightful place to all relevant stakeholders: governments, the Secretary General, the Parliamentary Assembly, the Human
Rights Commissioner, the NGOs, and national structures, and, last but not least,
the Court itself.
I trust that the San Marino Colloquy will mark a new phase in the reflection
on measures to secure the long-term effectiveness of the Court and, as such, give
a fresh impetus to the whole process. I should like to thank and congratulate our
hosts, the government of San Marino, not only for their excellent initiative to organise this Colloquy but also for the warm hospitality they have extended to all
of us, which witnesses, once more, the excellent way in which your country
chaired the Committee of Ministers of the Council of Europe.
Grazie a tutti e grazie a San Marino. Ž
92
Future developments of the European Court of Human Rights
Closing address
Mr Guido Bellatti Ceccoli
Ambassador, Chairman of the Ministers’ Deputies
P
resident of the European Court of Human Rights, Deputy Secretary General,
President of the Wise Persons’ Group, Representative of the Parliamentary Assembly, Commissioner for Human Rights, Excellencies, colleagues, ladies and
gentlemen,
Let me first of all express, on behalf of Mr Fiorenzo Stolfi, Minister for Foreign
and Political Affairs and Chairman of the Committee of Ministers, the satisfaction we feel at your presence in our country and the most important contribution
you have all made to this debate, which concerns a matter of key priority for the
San Marino Chairmanship and a major challenge to our Organisation.
We are touched by the thanks which you have kindly expressed to my Minister
and my authorities for the initiative we have taken in organising this Colloquy.
Now it is my turn to return the compliment: my Minister, my authorities, thank
you – all of you – because you have helped us win our bet.
Let me explain: you will remember that the Colloquy programme says that the
colloquy is expected to give rise to useful reflections and suggestions for the
preparation of the 117th Ministerial Session in May 2007, at which the Committee of Ministers will take its first decisions regarding the follow-up to be given to
the Wise Persons’ Report by the relevant institutions of the Council of Europe.
This result could not be counted on: we might have taken part in two days of
platitudes uttered by speakers already wedded to fixed positions and secondhand thinking.
But the reality was something quite different: a debate of a high quality conducted by people united around the single ambition to take forward the process
of which the Wise Persons’ Report is the latest stage: the process of adapting our
system of human rights protection to present and future circumstances.
San Marino Colloquy, 22-23 March 2007
93
Closing address
This is why I, in turn, thank you for the dynamism, the freedom and the intellectual professionalism of your discussions and your commitment to the protection of human rights.
Madam Deputy Secretary General, dear Maud, you have just given your synthesis of our debates – a faithful and accurate one, I would add – and in so doing
you have identified many guidelines which will enable us to go back to Strasbourg with a clearer idea of what we have to do.
In this synthesis I note a certain number of findings which I think are very important. For example, in the framework of our discussion on the proposal to
create a judicial committee as a filtering mechanism, many speakers maintained
that we must keep to the status quo, i.e. that the Court is composed of one judge
per member state. Even solutions based, for example, on rotating the judges or
recourse to ad hoc judges should be considered with caution, it was said, because
of implications of various kinds.
Likewise, few speakers saw unalloyed advantages in the proposal to have the
amount of just satisfaction determined by national bodies, as even if this function were to be exercised under the Court’s supervision, some thought it might
give rise to additional applications and thus frustrate the aim of the exercise.
On the other hand, I noted widespread support for the idea of facilitating the
adaptation of the Convention’s procedures.
There are two other central points: first, the absolute necessity for Protocol
No. 14 to enter into force. We all hope that the State Duma will make it possible
to realise this objective by ratifying the Protocol as soon as possible.
Secondly, the question of effective domestic remedies deserves our full attention. In the light of what has been said here, we affirm that it is essential that
respect for human rights is ensured first and foremost at national level, as the
Commissioner for Human Rights underlined this morning when outlining what
he is doing and what he proposes to do in this crucial area.
Clearly, any individual or collective action taken with this in mind is of the
highest importance. We must find means of ensuring effective monitoring whilst
reaffirming the principle of subsidiarity in the communal exercise of respect for
fundamental rights.
Human rights education is also fundamental and I hope that the follow-up
given to the Wise Persons’ Report will incorporate an in-depth commitment in
favour of propagating knowledge of human rights amongst Europeans, in line
with the decisions adopted by our ministers in May 2004.
We have been reminded of the importance of the complementary roles of the
other Council of Europe bodies: the Commissioner for Human Rights, of course,
but also the Committee for the Prevention of Torture, the European Commission against Racism and Intolerance, the Advisory Committee of the Framework
Convention for the protection of national minorities.
94
Future developments of the European Court of Human Rights
Mr Guido Bellatti Ceccoli
The last point I would like to underline is something that was said by the Secretary General: an observation which he obviously and quite rightly considered
sufficiently important to repeat at our ceremonial session before the Captains
Regent. What Terry Davis said – essentially – was this: you cannot legitimately
solve the problem of the Court by closing the doors which give access to it. On
the contrary, those doors have to be opened as wide as possible so that anyone
believing their rights to have been violated may have unfettered access confident
in the belief that their complaint will be dealt with effectively and justly. I invite
you all to keep that thought in mind because in my view it is closely linked with
the central position of the Court – the sun was mentioned earlier in our discussions – in the Council of Europe system.
San Marino’s task as Chair of the Committee of Ministers is now to inform my
colleagues in Strasbourg of what has taken place here so as to prepare concrete
decisions with a view to the ministerial meeting on 11 May. In carrying out this
task I shall rely on the much-appreciated help of my colleagues who have taken
part in this Colloquy as group chairs or as national representatives.
T
he Wise Persons have done a remarkable job considering the vastness of the
challenge before them. We pay tribute to President Rodríguez Iglesias and his
colleagues. Reform is in any event unavoidable and the Report provides strong
foundations for the edifice. I underline that all the observations made were constructive and positive in spirit, which can only be helpful for the next stages.
Thus the Wise Persons’ Report is and will remain a milestone along the way
which we must travel. I agree with President Costa when he said just now that
the Report is not to be buried.
My dear colleagues, let me re-open the chapter of thanks and on behalf of us
all express our appreciation of all who contributed to this colloquy. I would first
mention our acting Chair, Philippe Boillat, who directed our work with such admirable efficiency and flexibility. I would also like to thank Alfonso de Salas, the
secretary to the CDDH, who was both architect and site foreman. I would not
like to forget my own colleagues in the Ministry for Foreign Affairs, not least the
members of my team at the Strasbourg mission including my deputies who have
been here for some days, Eros Gasperoni and Michela Bovi, both of whom contributed greatly to the organisation of the colloquy. And finally thank you to everyone who has over the last two days worked, visibly or less visibly to make them
– and I say it again with satisfaction – a total success.
To those who are returning home now, I wish “Bon voyage” and to those who
are staying on for a little to enjoy our country, I wish you a pleasant stay. Ž
in the light of the Wise Persons’ Report
95
Programme
of the Colloquy
Thursday 22 March 2007
8.30
Registration
9.00
Welcome address: Mr Fiorenzo
Stolfi, Minister of Foreign and
Political Affairs of the Republic of
San Marino, Chairperson of the
Committee of Ministers of the
Council of Europe
9.10
Some starting points
for our reflection on the future of
the Court: Mr Terry Davis, Secretary General of the Council of
Europe
9.50
Chairperson: Mr Philippe Boillat,
Director General of Directorate
General II, Human Rights, of the
Council of Europe
9.55
The 2004 reform and its implementation: Ms Ingrid Siess-Scherz,
former Chairperson of the Committee of Experts for the improvement of Procedures for the Protection of Human Rights (DH-PR)
10.20 Presentation of the Wise Persons’
Report: Mr Gil Carlos Rodríguez
Iglesias, Chair of the Group of
Wise Persons
11.55 Comments on
the Wise Persons’ Report from the
perspective of the Parliamentary
Assembly of the Council of Europe:
Ms Marie-Louise BemelmansVidec, Member of the Parliamentary Assembly
12.20 General discussion
13.30 Buffet hosted by the San Marino
authorities
15.10 The new judicial filtering mechanism: introductory comments:
Mr Martin Eaton, former Chairperson of the Steering Committee
for Human Rights (CDDH)
15.30 Relations between the Court
and States Parties
to the Convention:
Ms Wilhelmina Thomassen,
Judge at the Supreme Court of the
Netherlands
15.50 Questions and discussion
16.30 Coffee break
17.15 Questions and discussion (continued)
10.40 Coffee break
18.30 End of the Session
11.30 Comments
on the Wise Persons’ Report from
the perspective of the European
Court of Human Rights: Mr JeanPaul Costa, President of the European Court of Human Rights
19.00 Official audience with Their Excellencies the Captains Regent of the
Republic of San Marino,
Mr Antonio Carattoni and
Mr Roberto Giorgetti, Palazzo
Pubblico, San Marino
96
Future developments of the European Court of Human Rights
Programme
20.00 Dinner hosted by the San Marino
authorities
Friday 23 March 2007
9.30
9.50
Alternative or complementary
means of resolving disputes and
other issues broached
in the Wise Persons’ Report:
Mr Thomas Hammarberg,
Council of Europe Commissioner
for Human Rights
Questions and discussion
10.45 Coffee break
11.30 General discussion
in the light of the Wise Persons’ Report
12.45 Synthesis of the Colloquy:
Ms Maud de Boer-Buquicchio,
Deputy Secretary General of the
Council of Europe
13.00 Closing address: Mr Guido Belatti
Ceccoli, Ambassador, Chairman
of the Ministers’ Deputies
13.15 Time available for lunch
15.00 Guided tour of San Marino organised by the San Marino authorities
97
Participants
San Marino, 22-23 March 2007/Saint-Marin, 22-23 mars 2007
Member states/États membres
Albania/Albanie
Bulgaria/Bulgarie
Suela Meneri
Government Agent – Ministry of Foreign
Affairs/Agent du Gouvernement – Ministère
des Affaires étrangères
Ivaylo Ivanov
Andorra/Andorre
Gemma Cano
Deputy to the Permanent Representative/
Adjointe au Représentant permanent
Armenia/Arménie
Christian Ter Stepanian
Ambassador, Permanent Representative/
Ambassadeur, Représentant permanent
Azerbaijan/Azerbaïdjan
Rashad Aslanov
Second Secretary of the Azerbaijanian
Embassy in Rome/Deuxieme Secrétaire de
l’Ambassade de l’Azerbaïdjan à Rome
Belgium/Belgique
Jan Devadder
Ambassador, Permanent Representative/
Ambassadeur, Représentant permanent
Isabelle Niedlispacher
Legal Attaché, Ministry of Justice, Human
Rights Service/Attaché juridique, Ministère de
la Justice, Service des droits de l’homme
Minister Plenipotentiary, Head of Human
Rights Department, Human Rights and
International Humanitarian Organisations
Directorate/Ministre plénipotentiaire, Chef de
Direction des Droits de l’Homme et des
Organisations internationales humanitaires
Croatia/Croatie
Štefica Stažnik
Assistant to the Minister of Justice,
Government Agent/Assistant du Ministre de la
Justice, Agent du Gouvernement
Vesna Batistic Kos
Deputy Permanent Representative/
Représentante permanente adjointe
Romana Kuzmanic Oluic
Counsellor, Human Rights Department –
Ministry of Foreign Affairs/Conseiller, Section
des Droits de l’Homme – Ministère des Affaires
étrangères
Cyprus/Chypre
Michalis Stavrinos
Ambassador, Permanent Representative/
Ambassadeur, Représentant permanent
Czech Republic/République tchèque
Ondrej Abrham
Bosnia and Herzegovina/BosnieHerzégovine
Deputy Permanent Representative/
Représentant permanent adjoint
Monika Mijić
Government Agent/Agent du Gouvernement
Jiří Kmec
98
Ministry of Justice/Ministère de la Justice
Future developments of the European Court of Human Rights
Participants
Denmark/Danemark
Germany/Allemagne
Nina Holst-Christensen
Deputy Permanent Secretary – Ministry of
Justice/Secrétaire permanente adjointe –
Ministère de la Justice
Almut Wittling-Vogel
Agent for Human Rights, Federal Ministry of
Justice/Agent pour les Droits de l’Homme,
Ministère fédéral de la Justice
Christine Pii Hansen
Greece/Grèce
Head of Section – Ministry of Foreign Affairs/
Chef de Section – Ministère des Affaires
étrangères
David Michael Kendal
Special Advisor, International Law – Ministry
of Foreign Affairs/Conseiller spécial, Droit
International – Ministère des Affaires
étrangères
Dorit Borgaard
Legal Advisor, Human Rights Division –
Ministry of Justice/Conseiller Juridique,
Division des Droits de l’Homme – Ministère de
la Justice
Estonia/Estonie
Mai Hion
Director of the Division of Human Rights –
Ministry of Foreign Affairs/Directeur de la
Division des Droits de l’Homme – Ministère
des Affaires étrangères
Antonios Bredimas
Athens University Professor, Faculty of Law/
Professeur Université d’Athènes, Faculté de
Droit
Iceland/Islande
Pálína Runarsdottir
Deputy to the Permanent Representative/
Adjointe au Représentant permanent
Ireland/Irlande
James Kingston
Deputy Legal Advisor – Ministry of Foreign
Affairs/Conseiller Juridique adjoint –Ministère
des Affaires étrangères
Italy/Italie
Finland/Finlande
Assunta Cardone
Magistrate, Deputy Chief of Judicial Affairs
Department – Ministry of Justice/Magistrat,
Chef de la Section des Affaires Juridiques –
Ministère de la Justice
Arto Kosonen
Nadia Plastina
Director of the Unit for Human Rights Courts
and Conventions, Legal Department –
Ministry of Foreign Affairs, Government
Agent/Directeur pour les Juridictions et
Conventions des Droits de l’Homme, Section
Juridique – Ministère des Affaires étrangères,
Agent du Gouvernement
Magistrate, Director of the Office of Human
Rights – Ministry of Justice/Magistrat,
Directeur du Bureau des Droits de l’Homme –
Ministère de la Justice
France
Latvia/Lettonie
Anne Françoise Tissier
Inga Reine
Deputy Head of Human Rights – Ministry of
Foreign Affairs/Sous-directeur des Droits de
l’Homme – Ministère des Affaires étrangères
Government Agent – Ministry of Foreign
Affairs/Agent du Gouvernement – Ministère
des Affaires étrangères
in the light of the Wise Persons’ Report
Francesco Crisafulli
Government Co-Agent/Co-Agent du
Gouvernement
99
Participants
Lithuania/Lituanie
Lijana Štarienė
Assistant to the Government Agent/Assistant
auprès de l’Agent du Gouvernement
Netherlands/Pays-Bas
Gérard De Boer
Deputy to the Permanent Representative/
Adjoint au Représentant permanent
Martin Kuijer
Senior Legal Advisor, Human Rights Affairs –
Ministry of Justice/Conseiller supérieur
juridique, Questions des droits de l’homme –
Ministère de la Justice
Norway/Norvège
Guro Camerer
Senior Adviser, Legal Department – Ministry
of Foreign Affairs/Conseiller supérieur, Section
juridique – Ministère des Affaires étrangères
Tonje Meinich
Legal Adviser, Ministry of Justice/Conseiller
Juridique, Ministère de la Justice
Poland/Pologne
Piotr Świtalski
Ambassador, Permanent Representative/
Ambassadeur, Représentant permanent
Jakub Wolasiewicz
Ambassador, Government Agent/
Ambassadeur, Agent du Gouvernement
Eliza Suchożebrska
Government Co-Agent/Co-Agent du
Gouvernement
Portugal
João Manuel da Silva Miguel
Deputy Prosecutor General – Government
Agent/Procureur général adjoint – Agent du
Gouvernement
Russian Federation/Fédération de
Russie
Oleg Malginov
Director, Department for Humanitarian Cooperation and Human Rights – Ministry of
Foreign Affairs/Directeur, Département pour
la coopération humanitaire et les droits de
l’homme – Ministère des Affaires étrangères
Andrey Smaga
Head of Division, European Co-operation
Department – Ministry of Foreign Affairs/Chef
de Division, Département de la Coopération
Européenne – Ministère des Affaires
étrangères
Vladislav Ermakov
Counsellor, Department for Humanitarian
Cooperation and Human Rights-Ministry of
Foreign Affairs/Conseiller du Département
pour la coopération humanitaire et les droits de
l’homme – Ministère des Affaires étrangères
Maria Molodtsova
Second secretary, Permanent Representation
to the Council of Europe/Deuxième Secrétaire,
Représentation Permanente auprès du Conseil
de l’Europe
San Marino/Saint-Marin
Valeria Pierfelici
Head Magistrate of the Single Court/Magistrat
Dirigeant du Tribunal
Dennis Guerra
Co-ordinator of the Foreign Affairs Ministry/
Coordinateur du Ministère des Affaires
étrangères
Lucio Leopoldo Daniele
Head State Lawyer – Government Agent/Chef
du Bureau des Avocats de l’État – Agent du
Gouvernement
Romania/Roumanie
Maria Lea Pedini
Ministry of Foreign Affairs Director General/
Directrice Générale – Ministère des Affaires
étrangères
Ioana Ilie
Third Secretary – Ministry of Foreign Affairs/
Troisième Secrétaire – Ministère des Affaires
étrangères
Federica Bigi
Director of Political Affairs – Ministry of
Foreign Affairs/Directrice des Affaires
Politiques – Ministère des Affaires étrangères
100
Future developments of the European Court of Human Rights
Participants
Serbia/Serbie
Switzerland/Suisse
Majda Kršikapa
Advisor to the President on European
Integration – Supreme Court/Conseillère du
Président pour l’intégration européenne –
Cour Suprême
Frank Schürmann
Government Agent/Agent du Gouvernement
Vanja Rodić
Advisor to the Government Agent, Agency of
Human and Minority Rights/Conseiller de
l’Agent du Governement, Agence des Droits de
l’Homme et des Minorités
Slovak Republic/République Slovaque
Igor Grexa
Director General, Legal and Consular Section
– Ministry of Foreign Affairs/Directeur
Général pour les affaires juridiques et
consulaires – Ministère des Affaires étrangères
Marica Pirošiková
Government Agent, Ministry of Justice/Agent
du Gouvernement, Ministère de la Justice
Spain/Espagne
Fernando Mansito Caballero
Ambassador, Permanent Representative/
Ambassadeur, Représentant permanent
Ignacio Blasco Lozano
State Lawyer at the European Court and the
other International Organisations/Avocat de
l’État au Tribunal Européen et auprès des autres
Organisations Internationales
Sweden/Suède
Inger Kalmerborn
Senior Legal Adviser – Ministry of Foreign
Affairs and Government Agent/Conseiller
juridique supérieur – Ministère des Affaires
étrangères et Agent du Gouvernement
Christoph A. Spenle
Scientific Collaborator, Directorate of
International Law – Ministry of Foreign
Affairs/Direction du Droit International –
Ministère des Affaires étrangères
Turkey/Turquie
Vedia Sirmen
Legal Advisor, Department for the European
Court of Human Rights at the General
Directorate for the Council of Europe and
Human Rights –Ministry of Foreign Affairs/
Coinseiller Juridique – Département de la Cour
Européenne des Droits de l’Homme auprès de
la Direction Génèrale Adjoint du Conseil de
l’Europe – Ministère des Affaires étrangères
Ukraine
Yuriy Zaytsev
Government Agent/Agent du Gouvernement
United Kingdom/Royaume-Uni
Edward Seymour Adams
Head of Human Rights Division – Department
for Constitutional Affairs/Chef de la Division
des droits de l’homme – Département des
affaires constitutionnelles
Helen Mulvein
Deputy Permanent Representative/
Représentante permanente adjointe
John Grainger
Deputy Legal Adviser, Foreign and
Commonwealth Office, and Government
Agent/Conseiller Juridique adjoint, Ministère
britannique des affaires étrangères et du
Commonwealth, et Agent du Governement
Observer states/États observateurs
United States of America/Etats-Unis
d’Amérique
Frankie Reed
Consul General in Strasbourg and Deputy
in the light of the Wise Persons’ Report
Observer to the Council of Europe/Consul
Général à Strasbourg et Observateur adjoint
auprès du Conseil de l’Europe
101
Participants
Keynote speakers/Intervenants
Terry Davis
Secretary General of the Council of Europe/
Secrétaire général du Conseil de l’Europe
Gil Carlos Rodríguez Iglesias
Chairman of the Group of Wise Persons/
Président du Groupe des Sages
Jean-Paul Costa
President of the European Court of Human
Rights/Président de la Cour européenne des
Droits de l’Homme
Wilhelmina Thomassen
Justice, Supreme Court of the Netherlands/
Juge, Cour Suprême des Pays-Bas
Marie-Louise Bemelmans-Videc
Member of the Parliamentary Assembly of the
Council of Europe/Membre de l’Assemblée
Parlementaire du Conseil de l’Europe
Thomas Hammarberg
Commissioner for Human Rights of the
Council of Europe/Commissaire aux droits de
l’homme du Conseil de l’Europe
Maud de Boer-Buquicchio
Deputy Secretary General of the Council of
Europe/Secrétaire Générale adjointe du
Conseil de l’Europe
Philippe Boillat
Director General of Human Rights – Council of
Europe/Directeur général des droits de
l’homme – Conseil de l’Europe
Ingrid Siess-Scherz
Deputy Agent, Head of Division – Austrian
Federal Chancellery for International Affairs/
Agent adjoint, Chef de Division – Chancellerie
fédérale d’Autriche pour les Affaires étrangères
Martin Eaton
Former Chairperson of the Steering
Committee for Human Rights (CDDH)/
Ancien Président du Comité directeur pour les
droits de l’homme (CDDH)
Committee of Ministers/Comité des Ministres
Fiorenzo Stolfi
Chairman of the Committee of Ministers/
Président du Comité des Ministres
Guido Bellatti Ceccoli
Chairman of Ministers’ Deputies/Président des
Délégués des Ministres – Ambassador,
Permanent Representative of San Marino/
Ambassadeur, Représentant permanent de
Saint-Marin
Bruno Gain
Chairman of the Rapporteur Group on Legal
Co-operation (GR-J)/Président du Groupe de
Rapporteurs sur la coopération juridique (GRJ) – Ambassador, Permanent Representative of
France/Ambassadeur, Représentant
permanent de la France
James A. Sharkey
Chairman of the Rapporteur Group on Human
Rights (GR-H)/Président du Groupe de
Rapporteurs sur les Droits de l’Homme (GR-H)
– Ambassador, Permanent Representative of
Ireland/Ambassadeur, Représentant
permanent de l’Irlande
European Court of Human Rights/Cour européenne des Droits de l’Homme
Christos Rozakis
Vice-President/Vice président
Vladimiro Zagrebelsky
Judge/Juge
Nicolas Bratza
Vice-President/Vice président
Antonella Mularoni
Judge/Juge
102
Future developments of the European Court of Human Rights
Participants
Erik Fribergh
Registrar/Greffier
Michael O’Boyle
Deputy Registrar/Greffier Adjoint
Patrick Titiun
Head of Cabinet of the President/Chef du
Cabinet du Président
Group of Wise Persons/Groupe des Sages
Emmanuel Roucounas
Member of the Group/Membre du Groupe
Secretariat of the Parliamentary Assembly/Secrétariat de l’Assemblée
parlementaire
Mateo Sorinas
Secretary General/Secrétaire Général
Andrew Drzemczewski
Head of Secretariat of the Committee on Legal
Affairs and Human Rights/Chef du Secrétariat
de la Commission des questions juridiques et
des droits de l’homme
Steering Committee for Human Rights/Comité directeur pour les droits de
l’homme (CDDH)
Roeland Böcker
Chairperson/Président
Deniz Akçay
Vice Chair/Vice-présidente
Committee of Experts for the improvement of procedures for the protection
of human rights (DH-PR)/Comité d’experts pour l’amélioration des
procédures de protection des droits de l’homme (DH-PR)
Vit Schorm
Chairperson/Président
Secretariat of the Council of Europe/Secrétariat du Conseil de l’Europe
Manuel Lezertua
Director of the Office of the Commissioner for
Human Rights of the Council of Europe/
Directeur du bureau du Commissaire aux
droits de l’homme du Conseil de l’Europe
Jeroen Schokkenbroek
Head of the Human Rights Intergovernmental
Programmes Department/Chef de service des
programmes intergouvernementaux en
matière des droits de l’homme
Alfonso de Salas
Head of Division – Colloquy Secretary/Chef de
Division – Secrétaire du Colloque
in the light of the Wise Persons’ Report
Simon Palmer
Principal Administrator, Secretariat of the
Committee of Ministers/Administrateur
principal, Secrétariat du Comité des Ministres
Gianluca Esposito
Adviser, Private Office of the Secretary General
and of the Deputy Secretary General/
Conseiller, Cabinet privé du Secrétaire général
et du Secrétaire général adjoint
Henriette Girard
Press Attaché – Council of Europe/Attachée de
presse – Conseil de l’Europe
103
Participants
Irene Kitsou-Milonas
Advisor to the Commissioner for Human
Rights of the Council of Europe/Conseiller du
Commissaire aux droits de l’homme du Conseil
de l’Europe
NGOs and institutions/ONG et institutions
Conference of INGOs of the Council of
Europe/Conférence des OING du
Conseil de l’Europe
Gabriel NISSIM
President of Human Rights Grouping of
INGOs of the Council of Europe/Président du
Regroupement Droits de l’Homme des OING
du Conseil de l’Europe
Tamar Khidasheli
Legal Intern/Stagiaire juridique
Interights
Doina Ioana Straisteanu
Lawyer, Europe Programme/Juriste,
Programme Europe
Aire Centre
Liberty
Nuala Mole
Director/Directeur
Alexander Gask
Legal Officer/Fonctionnaire juridique
Amnesty International
Jill Heine
Legal adviser/Conseiller juridique
European Group of National Human
Rights Institutions
European Human Rights Advocacy
Centre (EHRAC)
Stéphanie Lagoutte
Philip Leach
Director/Directeur
Researcher, Danish Institute for Human
Rights/Chercheur, Institut Danois pour les
droits de l’homme
Other experts/Autres experts
Gerard Cohen-Jonathan
Professor Emeritus of Panthéon-Assas
University (Paris II)/Professeur émérite de
l’Université Panthéon-Assas (Paris II)
Norbert Paul Engel
Director of Europäische GrundrechteZeitschrift (EuGRZ)/Directeur du Europäische
Grundrechte-Zeitschrift (EuGRZ)
Erika Engel
Editor-in-Chief Human Rights Law Journal
(HRLJ)/Chef Rédacteur du Human Rights Law
Journal (HRLJ)
104
Marek Antoni Nowicki
President of Helsinki Foundation for Human
Rights. Former member of the European
Commission of Human Rights. Former
international Ombudsperson in Kosovo/
Président de la Fondation pour les Droits de
l’Homme d’Helsinki. Ancien membre de la
Commision Européenne des Droits de
l’Homme. Ancien Ombudsperson
international en Kosovo
Future developments of the European Court of Human Rights
Participants
Pierre Vandernoot
State Counsellor, Co-Director of the magazine
Revue trimestrielle des droits de l’homme,
Professor at the Free University of Brussels/
Conseiller d’État, Co-directeur de la Revue
trimestrielle des droits de l’homme, maître de
conférences à l’Université libre de Bruxelles
Host country (organisation of the colloquy)/Pays hôte (organisation du
colloque)
Maria Alessandra Albertini
Embassy Counsellor – Ministry of Foreign
Affairs/Conseiller d’Ambassade – Ministère
des Affaires étrangères
Michela Bovi
Deputy to the Permanent Representative to the
Council of Europe/Adjointe au Représentant
Permanent auprès du Conseil de l’Europe
Marcello Beccari
Embassy Counsellor – Ministry of Foreign
Affairs/Conseiller d’Ambassade – Ministère
des Affaires étrangères
Katia Massari
Foreign Affairs Ministry/Ministère des Affaires
Etrangères
Luca Brandi
Embassy Counsellor – Ministry of Foreign
Affairs/Conseiller d’Ambassade – Ministère
des Affaires étrangères
Corrado Carattoni
Embassy Counsellor – Ministry of Foreign
Affairs/Conseiller d’Ambassade – Ministère
des Affaires étrangères
Dario Galassi
Embassy Counsellor – Ministry of Foreign
Affairs/Conseiller d’Ambassade – Ministère
des Affaires étrangères
Stefano Stolfi
Embassy Counsellor – Ministry of Foreign
Affairs/Conseiller d’Ambassade – Ministère
des Affaires étrangères
Silvia Berti
Embassy Secretary – Ministry of Foreign
Affairs/Secrétaire d’Ambassade – Ministère
des Affaires étrangères
Eros Gasperoni
Deputy to the Permanent Representative to the
Council of Europe/Adjoint au Représentant
Permanent auprès du Conseil de l’Europe
in the light of the Wise Persons’ Report
Séverine Dozinel
Interpreter-translator – Ministry of Foreign
Affairs/Interprète-traductrice – Ministère des
Affaires étrangères
Joanne Valentini
Interpreter – Translator- Ministry of Foreign
Affairs/Interprète- Traductrice – Ministère des
Affaires étrangères
Marina Volpinari
Interpreter-translator – Ministry of Foreign
Affairs/Interprète-traductrice – Ministère des
Affaires étrangères
Monica Felici
Foreign Affairs Ministry/Ministère des Affaires
étrangères
Loredana Mazza
Foreign Affairs Ministry/Ministère des Affaires
étrangères
Morena Tamagnini
Foreign Affairs Ministry/Ministère des Affaires
étrangères
Marina Zafferani
Foreign Affairs Ministry/Ministère des Affaires
étrangères
Natascia Bartolini
Intern, Foreign Affairs Department/Stagiaire,
Département des affaires étrangères
105
Participants
Federico Cavalli
Intern, Foreign Affairs Department/Stagiaire,
Département des affaires étrangères
Emanuele D’Amelio
Intern, Foreign Affairs Department/Stagiaire,
Département des affaires étrangères
Interpreters/Interprètes
Cynera Jaffrey
106
Jan Krotki
Future developments of the European Court of Human Rights
P r e s i d e n z a
S a n M a r i n o
P r é s i d e n c e
S a m m a r i n e s e
Chairmanship
Saint-Marinaise
d e l C o m i t a t o
of the Committee
d u
C o m i t é
d e i M i n i s t r i
o f M i n i s t e r s
des Ministres
del Consiglio
of the Council
d u C o n s e i l
d ’ E u r o p a
o f
E u r o p e
d e l ’ E u r o p e
Directorate General of Human Rights
Council of Europe
100
95
F-67075 Strasbourg Cedex
http://www.coe.int/human_rights/
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